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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.
We hope you enjoy ‘Inside Background Screening’ and that you will share your interest and thoughts with us.
Salary History Questions Are Now Banned in New York
Since early January, New York employers have been prohibited from inquiring
about an applicant’s prior salary. Applying to all public and private employers within
New York state and covering applicants and employees who have taken an
affirmative step to seek full-time, part-time, or temporary/seasonal employment
with an employer, the law does not apply to independent contractors, freelance
workers, or other contract workers. Although employers are prohibited from
requesting the salary history of an applicant, an applicant may choose to
voluntarily disclose his or her prior salary.
What is Past is Prologue: The Ninth Circuit Again Rules That Prior Salary
Cannot Justify Pay Differences
In February, the Ninth Circuit issued a decision in Rizo v. Yovino, holding that the
prior salary cannot be used as a “factor other than sex” to justify pay differences
under the federal Equal Pay Act. With the Feb. 27 ruling, the Ninth Circuit joined
the Tenth and Eleventh circuits in holding that the Equal Pay Act precludes
employers from relying solely on prior salary to justify pay differences. Brought by
Aileen Rizo, a math consultant for the Fresno County public schools, internal
complaints were brought regarding the disparity between her compensation and
that of her male counterparts and the suit was filed raising allegations under the
federal Equal Pay Act, Title VII, and the California Fair Employment and Housing
Maryland’s Ban the Box Law Requires Swift Action for Employers to Comply
The Maryland General Assembly voted to override Governor Larry Hogan’s veto of
the Criminal Record Screening Practices Act. Employers must be prepared to
comply with the law when it takes effect on February 29, 2020. The act establishes
a statewide ban the box law prohibiting certain employers in Maryland from
requiring a job applicant to disclose information related to their criminal record, with
limited exception, prior to an in-person interview. The act does not prohibit an
employer from running background checks or public record searches on applicants
prior to in-person interviews, but it does permit employers to require an applicant to
disclose any criminal record during the first in-person interview.
Walgreens Will Pay $7.5 Million to Settle Unlicensed-Pharmacist Claims
Walgreens was sued by several businesses that claim Kim Thien, an employee at the pharmacy, dealt with more than 745,000 prescriptions, with thousands for oxycodone, fentanyl, morphine and codeine, from 2006 to 2017. Thien was not licensed by the state pharmacy board as required by regulation. In addition to a $7.5 million settlement, Walgreens also agreed to institute a license-verification program and conduct annual audits, among other measures.
9th Circuit Holds All Members of Certified Class Must Have Article III Standing
to Recover Monetary Damages
The 9th Circuit recently held that individual class members must satisfy Article III’s
standing requirements in order to recover individual monetary damages. Class members who are a part of Ramirez v. TransUnion LLC who experienced no injury-in-fact traceable to the alleged statutory violation or challenged conduct must be excluded from any class damages award. The underlying litigation arises from a credit report by defendant TransUnion that identified plaintiff Ramirez’s name as matching two names on the U.S. Department of Treasury’s Office of Foreign Asset Control (OFAC) Database. Ramirez filed the putative class action claiming that Transunion’s OFAC alert practices violated various provisions of the Fair Credit Reporting Act (FCRA).
Court: Wisconsin Must Expunge Criminal Records from Database
Centering around the case of Demonta Antonio Hall of Milwaukee, the Wisconsin
Department of Justice must expunge arrest records of people who aren’t charged from its criminal database. Hall was arrested in 2015 for possession of an electronic weapon, but he was not charged by prosecutors. At the time, he had an outstanding warrant for a traffic citation, which he paid. He was arrested again in 2017 for second-degree sexual assault, for which he, again, was not charged. At the time of the second arrest, he had an outstanding warrant for disorderly conduct, for which he was fined. When he asked the Justice Department to expunge the weapon and assault arrests from his file, he was told it was not possible because all arrests and convictions had been fused into one file in its criminal database. Hall sued in 2017, demanding the department expunge the weapon and assault arrests and the County judge agreed. Upon appeal, the 2nd District Court of Appeals sided with Hall, finding that state law plainly says that anyone who is arrested but not charged is entitled to have the record of that case expunged from the database.
Ninth Circuit Reinforces Prohibition Against “Extraneous” Information in
Background Check Disclosures
In March, the Ninth Circuit issued its third opinion on the question of when an
employer’s background check disclosure satisfies the so-called “standalone”
disclosure requirement in the Fair Credit Reporting Act (FCRA), specifically
providing practical guidance for drafting such disclosures. Employers may order
background reports for employment purposes, but must first disclose their intention
to do so and obtain authorization. The disclosure must be “clear,” “conspicuous,”
and presented in a “document” that consists “solely” of the disclosure. The Ninth
Circuit’s opinion discussed each paragraph of the employer’s disclosure and ruled
that most, but not all, of the text was part of the disclosure rather than
impermissible “extraneous” material.
DRUG SCREENING ISSUES
The 2019 Honig Act Means New Obligations for New Jersey Employers
Around Cannabis at Work
In July 2019, New Jersey Governor Phil Murphy signed into law the Jake Honig
Compassionate Use Medical Cannabis Act, replacing the existing Compassionate
Use of Medical Marijuana Act (CUMMA). The previous Act contained language that
stated that “Nothing in [CUMMA] shall be construed to require … an employer to
accommodate the medical use of marijuana in the workplace,” but under the new
amendment, “It shall be unlawful to take any adverse employment action against
an employee who is a registered qualifying patient based solely on the employee’s
status as a registrant with the commission.” Employers should be prepared to
create policies that will comply with federal, state and local laws, and respond to a
potential increase in positive drug tests and the resultant challenges to any
employer action taken in response to a positive test result.
Federal Appeals Court Holds Test for Illegal Drugs is Not an Impermissible
Medical Examination, Even If Test May Reveal Lawful Drug Use
The federal appeals court in Turner v. Phillips 66 Co., Case No. 19-5030 (10th Cir.
Oct. 16, 2019) upheld the termination of an employee who tested positive for
amphetamines on a random drug test even though he claimed the result was due
to over-the-counter drug use. A random drug test was conducted by Phillips 66 Co. on employee Richard Turner and just three days later, he submitted to a post- accident drug test following a workplace accident. The initial random test yielded a positive result, which the defendant claimed was due to his use of Sudafed. He appealed the company’s termination decision and followed a denial with a discrimination charge with the Equal Employment Opportunity Commission (EEOC), alleging disability discrimination in violation of the Americans With Disabilities Act (ADA).
New Jersey’s Supreme Court Upholds Reinstatement of Medical Cannabis
User’s Claim Under the New Jersey Law Against Discrimination
The New Jersey Supreme Court affirmed the reinstatement of a disability
discrimination lawsuit filed by a medical cannabis cardholder against his former
employer after he was fired for failing a post-accident drug test. Medical marijuana
users in the state have two potential avenues to bring discrimination lawsuits
against employers: the New Jersey Law Against Discrimination (LAD) and the
Compassionate Use Medical Cannabis Act (CUMCA). The plaintiff, Justin Wild, a
cancer patient and medical cannabis cardholder under the Compassionate Use of
Medical Marijuana Act (CUMMA), tested positive for cannabis after being involved
in a car accident while at work. Although he was not found to be impaired at the
time by an emergency room doctor, his employment was terminated based upon
its policy against drugs in the workplace. He sued, claiming discrimination under
New Jersey Employers Must Accommodate Authorized Use of Medical
Marijuana Outside of Workplace
The plaintiff in Wild v. Carriage Funeral Holdings, Inc., a cancer patient and lawful
user of medical marijuana, was involved in a motor vehicle accident while at work.
Although he told a hospital physician that he possessed a license to use medical
marijuana, the physician determined that a drug test was not necessary because it
was clear he wasn’t under the influence of marijuana at that time. The employee’s
employment was terminated following a required drug test to return to work. The
plaintiff filed a suit, alleging disability discrimination and failure to accommodate
under the New Jersey Law Against Discrimination (LAD). The New Jersey
Supreme Court concluded that the plaintiff stated a LAD claim that was sufficient to
survive the employer’s motion to dismiss.
IMMIGRATION & eVERIFY
I-9 “In-Person” Requirement Relaxed During Pandemic
Effective through May 19, 2020, the Department of Homeland Security has relaxed
the “in-person” review requirements associated with the Form I-9 process for
certain employers on a remote working schedule. The change is the result of the
2020 coronavirus pandemic. All other Form I-9 process rules remain in effect.
While Form I-9 in-person inspection rules are currently relaxed for any U.S.
employer who has converted to a total remote working schedule, DHS has stated
that “if there are employees physically present at a work location, no exceptions
are being implemented at this time for in-person verification of identity and
employment eligibility documentation for Form I-9.” Remote employers should be asked to complete Section 1 of Form I-9 and choose identity and work- authorization documents from List A/B/C.
E-Verify Extends Timeframe for Taking Action to Resolve Tentative
Due to Social Security Administration (SSA) office closures to the public, the
federal E-Verify system is extending the timeframe to take action to resolve Social
Security Administration Tentative Nonconfirmations (TNC). Also extended is the
timeframe to take action to resolve U.S. Department of Homeland Security TNCs in
limited circumstances when an employee cannot resolve a TNC due to public or
private office closures. Employers must notify employees about their TNC result as
soon as possible and still are required to create cases for their new hires within
three business days from the date of hire.
U.S. DOT Issues Warning Regarding Use of CBD Products By DOT-Regulated
The U.S. Department of Transportation (DOT) Office of Drug and Alcohol Policy
Compliance (ODAPC) published a notice in February concerning the use of hemp
and cannabidiol (CBD) products by safety-sensitive employees regulated by DOT’s
agencies. ODAPC stated that any product, including CBD products, with a
concentration of more than 0.3% THC remains classified as marijuana, a Schedule
I drug under the Controlled Substances Act. All safety-sensitive employees should
understand that DOT requires testing for marijuana and not CBD, and that the
labeling of many CBD products may be misleading because the products could
contain higher levels of THC than what the product label states. Furthermore,
DOT’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of
Schedule I drugs for any reason.
DATA PROTECTION & PRIVACY
Working from Home? Here are 12 Steps to Reduce Data Privacy and Security
Risks, including pandemic-related phishing emails, increased pressure on network
architecture and user oversight, all are on the rise with the increase in businesses
instituting widespread remote work policies and procedures. In order to mitigate
the data privacy and security risks associated with remote work, 12 measures can
be taken by employers when responding to COVID-19. These include: multi-factor
authentication (MFA); sound transfer procedures; maintaining confidentiality;
working from home, rather than a café; knowing who to call regarding security
incidents and technical issues; saving data on a company-approved network and
cloud storage locations; understanding the limitations of existing insurance
policies; keeping in constant contact with employees; staying aware of phishing
attacks, minimizing the printing of confidential information; and using appropriate
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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