DECEMBER 2017

Message from the Editor:

Welcome to ‘Inside Background Screening’ our new newsletter. Our goal is to bring to you cutting edge news and information about what is happening in the background screening world to help keep you informed and to position you to make the best possible hiring decisions.

We hope you enjoy ‘Inside Background Screening’ and that you will share you interest and thoughts with us.

Lorenzo

Lorenzo Pugliano

CEO
Lpugliano@nsshire.com

LEGAL ISSUES

Employers Should Share All Background Check Reports Before Revoking Job Offers

It was ruled by a federal judge that an employer did not comply with requirements of the Fair Credit Reporting Act (FCRA) when it failed to send a rejected candidate a final background check report and required notices. Lemuel Wright argued that Lincoln Property Company violated the FCRA when it failed to provide him with time to contest a criminal background check and drug screening report before an adverse decision was taken. In addition, the plaintiff claimed he was not provided with a copy of the pertinent consumer report. The company decided to revoke the offer of employment based on his felony convictions that were included in both the preliminary and final reports, but the court denied their motion for summary judgment and concluded that a jury should resolve the dispute.

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High Alert for California Employers and Employers Nationwide for the Second Wave of FCRA Class Actions

Employers in the state of California are being urged to stay alert and remain vigilant when it comes to the Fair Credit Reporting Act (FCRA), as the plaintiff’s bar continues to pursue actions against employers that operate in plaintiff-friendly jurisdictions. The FCRA imposes requirements on employers who use “consumer reports” or “investigative consumer reports” for “employment purposes.” The requirements could be broken down into two categories – those guidelines employers must follow before obtaining a consumer report and those that must be followed if they intend to take “adverse action.” The increase in California FCRA suits could be blamed on several factors: statutory damages, concurrent jurisdiction in state courts, California’s FCRA, and plaintiff-friendly rulings in the Ninth Circuit.

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Federal Judge Rules State Sex Offender Registry is Unconstitutional

A judge in Colorado has ruled that listing offenders’ personal information, such as names and addresses, gives the public the power to punish beyond what the court has deemed appropriate. He also ruled that the Colorado Sex Offender Registration Act violates the 14th Amendment process of rights. The judge has argued than an individual assessment should be considered for each case. The Attorney General’s Office could appeal the ruling to the 10th Circuit Court of Appeals.

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Pepsi Class Action Claims Company Violated Federal Law

Altareek Grice has alleged in a class action lawsuit against Pepsi that the company obtained a consumer report from him without his knowledge or permission when he applied for a job at a bottling plant. He claims Pepsi failed to meet Fair Credit Reporting Act (FCRA) regulations when it didn’t use proper disclosures during the background check. Violations of the FCRA could lead to up $1,000 in fines. Grice represents a nationwide class of individuals that applied for positions with Pepsi and is limited to those who sought employment within the past two years. This could include more than 1,000 members.

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DRUG SCREENING

Opioid Crisis in U.S. Spills into Workplace

It’s no secret that drug abuse in the workforce is a growing challenge for American businesses. A Baltimore food-processing plant practices a zero-tolerance policy in which one randomly chosen employee gets tested each month. It is costly to hire a third-party company and pay the clinic to conduct the test, but the business is certainly not a good place to be intoxicated. According to the National Safety Council, 57 percent of employers say they drug test employees. And with opioids killing about 33,000 Americans in 2015, federal government employees who use drug tests will be required to submit to a more extensive screening. The opioid crisis has caused hiring difficulties, a slowing economy for the country, and dangerous alternatives to painkillers.

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Niffsinger v. SCC Niantic Operating Co.: What Does the Connecticut Ruling Mean for Employers

With more than half of the country passing laws that permit the use of marijuana, businesses are advised to become familiar with new laws. The drug remains on Schedule 1 under the Federal Controlled Substances Act (CSA), in the same category with heroin. Regardless of state regulations, possession of marijuana remains a federal crime. A recent federal trial in Connecticut ended with the decision that an employer can be sued by a prospective employee after withdrawing a conditional offer of employment due to a positive drug screening for marijuana. Noffsinger v. SSC Niantic Operating Co. was a case of first impression in which the court held that the federal law does not preempt the Connecticut Palliative Use of Marijuana Act (PUMA).

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EVERIFY & IMMIGRATION STATUS

ICE Announces Up to Five-Fold Increase in Form I-9 Worksite Inspections

In an effort to continue to promote homeland security and public safety, Immigration and Customs Enforcement (ICE) Acting Director Thomas Homan announced a significant increase in worksite related investigations. Worksite enforcement is an important component of ICE’s overall strategy. There are a number of proven strategies that employers can initiate immediately to address the risks of an ICE worksite audit. Compliance awareness with an emphasis on the importance of the I-9 form is a great first start. Conducting a self-audit is the best way to uncover I-9 errors and omissions, and the creation of an internal handbook that specifically documents how I-9 forms will be completed and reviewed for accuracy demonstrates good faith and serves as a great training document. Finally, the use of an electronic I-9 system helps ensure compliance moving forward.


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ICE Levies Largest Settlement Ever: Asplundh Tree Expert Co to Pay $95 Million Dollars

Asplundh Tree Expert Co. has been ordered to pay $95 million in the largest fine against a company for hiring thousands of immigrants who did not have permission to work in the United States. The 90-year-old company with 30,000 employees employed thousands of undocumented workers between 2010 and 2014. The company must forfeit $80 million in addition to paying a $15 million civil penalty for not complying with immigration law. In 2009, Asplundh fired hundreds of employees who were ineligible to work in the United States, later rehiring them under different names or false documents.


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Rep. Lamar Smith Introduced Mandatory E-Verify Bill

Rep. Lamar Smith reintroduced the Legal Workforce Act, H.R. 3711, a bill that would require all employers to use E-Verify within two years. Smith believes that by expanding the E-Verify system, jobs will only go to legal workers. The Legal Workforce Act repeals the current paper-based I-9 system and phases in mandatory E-Verify participation for new hires in six-month increments. It also requires that employees performing “agricultural labor of services” are only subject to the check within 30 months of the date of enactment. The bill preempts duplicative state laws mandating E-Verify use but retains the ability of states and localities to condition business licenses. It also protects against identity theft by allowing individuals to lock their social security number.

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Disclaimer: All information presented is for information purposes only and is not intended to provide professional or legal advice regarding actions to take in any situation. Nationwide Screening Solutions. makes no representations for any products or services that are mentioned and accepts no responsibility for any actions or consequences taken without the guidance of a licensed attorney or professional consultant

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