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Welcome to another edition of ‘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.
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Wisconsin Commission Finds Employers Cannot Consider Expunged Convictions – Even if Substantially Related to the Job
The Wisconsin Fair Employment Act prohibits employers from taking adverse employment action against an applicant or employee because of the individual’s conviction record, unless the conviction is “substantially related” to the position. Wisconsin law permits certain offenders who commit crimes before they reach the age of 25 to have their convictions expunged. In Staten v. Holton Manor (January 30, 2018), an applicant applied for a job as a certified nursing assistant at a skilled nursing facility. She disclosed on her application that she had been convicted multiple times, but that one of the convictions had been expunged. When she was not hired, the individual filed a charge of discrimination alleging the employer had violated the Wisconsin Fair Employment Act. The Wisconsin Labor and Industry Review Commission concluded that the employer could not rely on the expunged conviction when arguing that the individual’s conviction record was substantially related to the job.
9th Circuit Affirms Dismissal of FCRA Putative Class Action for Lack of Standing
The Ninth Circuit has ruled that the plaintiff in Bassett v. ABM Parking Services, Inc., et al., Case No. 2:16-CV-00947 (9th Cir. 1018) failed to allege a concrete injury-in-fact sufficient for Article III standing in a suit alleging a violation of the Fair Credit Reporting Act (FCRA). The panel applied Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), in which the Supreme Court emphasized Article II standing requires a concrete injury even in the context of a statutory violation. The panel also discussed the legislative history of the FCRA requirement to redact credit card expiration dates and concluded that the congressional judgment weighted against the plaintiff because Congress’ findings showed that a disclosed expiration date by itself posted minimal risk. And finally, the panel found the plaintiff’s alternative statutory theories of injury to be unpersuasive.
Washington Ban the Box Law Limits Criminal Background Inquiries
Washington will become the next state to implement “ban the box” legislation in June. Governor Jay Inslee signed into law the Washington Fair Chance Act (WFCA) on March 13, which prohibits inquiries regarding applicants’ conviction histories until the employer has determined the applicant is “otherwise qualified” for the position. Some employers are excluded, including those hiring a person who will or may have unsupervised access to children under the age of 18 or a vulnerable adult or person, and any employer, including a financial institution, who is expressly permitted or required under any federal or state law to inquire into, consider or rely on information about an applicant’s or employee’s criminal record for employment purposes; among others. Maximum penalties begin with a fine of $750 for first violations and $1,000 for each subsequent violation.
US Companies Doing Business in the EU or Impacting EU Individuals Must Comply with the EU GDPR by May 25, 2018
In a short two months, the European Union’s General Data Protection Regulation will take effect. The deadline for compliance is May 25, 2018. The GDPR significantly expands the jurisdiction of the EU’s data privacy framework to companies processing or controlling the personal data of employees or other individuals residing in the EU – regardless of the company’s location. The GDPR covers companies if it falls under one of the following tests: ‘establishment,” “goods and services” or “monitoring.” Among other heightened requirements and obligations, if a company is covered under the GDPR, it will be subject to stricter rules on obtaining employee consent to process and share personal data; it may have to appoint a data protection officer; and its employees will have greater rights with respect to access and control of their personal data.
Maine Recreational Marijuana Law Limits Drug Testing, Disciplinary Consequences Imposed by Employers
Effective February 1, 2018, a provision of Maine’s recreational marijuana law prohibits employers from taking adverse employment actions for off-premises marijuana use. One of the provisions provides that employers are not required to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or growing of marijuana in the workplace. In addition, employers are permitted to enact and enforce workplace policies restricting the use of marijuana by employees and discipline employees who are under the influence of marijuana in the workplace. The law does, however, prohibit employers from “refusing to employ a person 21 years of age or older solely for that person’s consuming marijuana outside of the … employer’s property.”
California Cities Drop Thousands of Marijuana Convictions
San Francisco and San Diego are moving to erase thousands of marijuana convictions en masse, which could be life-changing for some and helpful, especially, to minorities. San Francisco District Attorney George Gascon said he aims to “fix the harm that was done not only to the entire nation but specifically to communities of color.” Nine states have marijuana laws that allow people to clear or modify their records, according to the National Conference of State Legislatures.
Hair or Saliva or Urine? Which is Best for Drug-Testing Job Candidates?
There are currently three primary methods for specimen collection for employers who want to create a safe and healthy workforce through drug screening. Urine testing is used by 90 percent of employers, according to HireRight, with saliva used by 10 percent and hair used by 7 percent. HIreRight’s Dr. Todd Simo noted that alternate specimens are gaining interest. “Both hair and oral fluid testing have had double-digit yearly growth as more companies become aware [of them],” he said. Urine and hair testing pick up many different drugs, such as prescription medications, while oral testing panels are typically screening for marijuana, cocaine, PCP, amphetamines and opioids.
|IMMIGRATION & eVERIFY|
ICE to Employers: Expect More Form I9 Audits, Arrests and Outreach
Immigration and Customs Enforcement (ICE) agents conducted workplace raids on 77 businesses in San Francisco, Sacramento and San Jose in February and in early January, nearly 100 7-Eleven stores were targeted in the largest immigration enforcement operation conducted under President Donald Trump. Employers should expect this increase in worksite enforcement to continue. ICE audited 1,360 organizations in 2017, resulting in 71 indictments and 55 convictions of business owners and managers. But, as part of the ICE Mutual Agreement between Government and Employers voluntary compliance program, ICE and U.S. Citizenship and Immigration Services provide education and training on proper hiring procedures, fraudulent document detection and use of the E-Verify employment eligibility verification system, as well as certification for complying with the law.
Response Protocol for I-9 Audit and Immigration Raid
A Form I-9 Audit begins when Immigration and Customs Enforcement (ICE) serves a Notice of Inspection to a company representative requesting a review of the company’s I-9 forms for every employee. ICE may not request any personnel file that goes beyond a current and past employees list with social security information. A Notice of inspection must be served at least three days before ICE conducts the audit. ICE may arrive at a place of business in its enforcement capacity by making an unannounced visit to the workplace to search the premises, question employees, and review documents. In order to carry out this type of “raid,” ICE must apply for a judicial search warrant based on evidence such as noncompliance during an I-9 audit. Employers should consider designating one employee as a “Response Lead” at each corporate location that is deemed of potential interest to ICE.
| 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 Services 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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