Message from the Editor:
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.
Lorenzo Pugliano CEO
EMPLOYMENT SCREENING NEWS
Shelbyville Nurse Charged After Treating Patients for 15 Years with No License
Bobbie Gail Blair, 49, has been charged with pretending to be a nurse and treating thousands of patients without a license at the in-house medical clinic at the Tyson Foods plant. Although Blair graduated from the Licensed Practical Nurse (LPN) program at the Tennessee College of Applied Technology, she never passed the National Council Licensure Exam (NCLEX).
After Shooting, U of A to Require Background Checks of Grad Assistants
Graduate assistants at the University of Arizona will now need to go through a background check before working for the university. The policy change was announced several months after a former graduate assistant in the university’s hydrology department shot and killed a professor. The new change will go into effect July 1, 2023.
Clean Slate Legislation: Are You Ready for It?
Michigan recently introduced clean slate legislation that supporters argue will level the playing field for those who have a criminal background. This is just one of many states that will be implementing clean slate and ban the box legislations. Each state’s laws vary, and employers still have a duty to provide a safe workplace through appropriate screening.
Cal Seeks to Ban Criminal Background Checks for Most Private Sector Employers
Existing California law regulates inquiries into and the use of criminal history information in hiring. Existing state laws also substantially impedes the ability of employers (and background check companies) to obtain such information from public records. The existing restrictions, however, pale in comparison to draconian restrictions proposed earlier this year. On February 17, 2023, two state senators introduced Senate Bill 809 (SB 809) to replace one of the primary California laws with the “Fair Chance Act of 2023.”1 SB 809 is currently pending review by the Senate Judiciary Committee, and contains eight sections. Because the bill seeks to outright ban criminal background checks by most private sector employers, employers should monitor the progress of this bill in Sacramento.
Bill would ‘ban the box’ during hiring process for SC state government jobs
The “Workforce Opportunity Act,” would prohibit the state and its agencies from ask-ing about a person’s criminal history or record when they are applying for a job until they have gotten an interview or a conditional job offer, a practice commonly known as “banning the box.” It would also bar the state from disqualifying someone from a government job based solely on their criminal record unless the crime directly relates to the job for which they are applying. The bill also lays out the process for what the employer needs to do when they deny someone a job because of a prior criminal conviction, including giving them the reason in writing and disclosing the earliest date they can apply again.
The subcommittee delayed a vote on the bill until senators could work out those details, with Massey saying he intends to bring it back at a later date.
Updated FCRA Summary of Consumer Rights Released with a Mandatory Compliance Deadline of March 20, 2024
The Consumer Financial Protection Bureau (CFPB) has published an updated version of “A Summary of Your Rights Under the Fair Credit Reporting Act.” This version will replace an earlier version, which was published in October 2018, and includes non-substantive revisions to correct contact information for various federal agencies.
Creditors and Employers Beware: CFPB Amends Model Background Check Form and Adverse Action Language
The Consumer Financial Protection Bureau (CFPB) issued a final rule updating the model form for the Fair Credit Reporting Act (FCRA) Summary of Consumer Rights and information that must be included in adverse action notices under the Equal Credit Opportunity Act (ECOA). Specifically, the contact information is corrected in the Summary of Consumer Rights model form for multiple federal agencies, updating references to obsolete business types and making other technical corrections.
DRUG & ALCOHOL SCREENING
Public Safety Alert DEA Reports Widespread Threat of Fentanyl Mixed with Xylazine
The U.S. Drug Enforcement Administration has issued a warning concerning an increase in the trafficking of fentanyl mixed with xylazine (also known as Trang), a powerful sedative that is approved for veterinary use. A mixture of the two drugs creates a higher risk of suffering a fatal drug poisoning and because xylazine is not an opioid, naloxone does not reverse its side effects.
Washington Senate Passes Bill Banning Hiring Discrimination for Pot Use
A bill has been approved that would protect cannabis users from pre-employment job discrimination. Senate Bill 5123, passed by the Washington Senate, would bar employers from refusing to hire a job candidate based solely on the results of preemployment screening for cannabis use.
Truckers’ positive drug tests up 18% in 2022
The latest data from the Drug and Alcohol Clearinghouse reveals that drug use among commercial drivers may be at its highest level since the federal repository was set up in 2019 -but more are being cleared to drive again as well. Total drug violations reported into the Clearinghouse in 2022, including positive test and refusal to taka drug test, increased 18% to 69,668 compared with last year’s 59,011, according to the most recent statistics released by the Federal Motor Carrier Safety Administration. That rate almost doubled the 9.2% annual increase in drug violations reported in 2021. Much of the increase can be attributed to violations related to marijuana, the substance identified most in positive tests. Marijuana violations increased 31.6% in 2022 compared with 2021 to 40,916.
Washington May Soon Protect Job Applicants Who Use Cannabis
Over a decade ago, Washington became the first state to legalize cannabis for recreational use. But the state still permits employers to screen job applicants for cannabis use, creating a fundamental disconnect between what people can legally do off the job and Washington employers’ hiring practices.
Legislators proposed the bill to stop employers from restricting candidates’ job duties based on their past cannabis use. If passed, the law will prohibit discrimination against a job applicant for the legal use of cannabis outside of work and away from the workplace. It also prohibits discrimination against an applicant if a required drug screening test finds non-psychoactive cannabis metabolites in the applicant’s hair, blood, urine, or other bodily fluids.
DATA PROTECTION & PRIVACY
California Consumer Privacy Act Now Regulates HR Data
On January 1, 2023, substantive amendments to the California Consumer Privacy Act (“CCPA”) took effect and the temporary exemptions of certain employees and business-tobusiness (“B2B”) personal information expired, providing employees, job applicants, independent contractors and B2B contacts with the same CCPA protection and rights as California consumers. The amendments have expanded coverage to include all personal information of employees, contractors, applicants and B2B contacts of California employers. While the amendments are effective, enforcement is expected to be delayed until July 1, 2023.
Walton v. Roosevelt University: Ill. Supreme Court Issues Rare Defense-Friendly BIPA Opinion
On March 23, 2023, the Illinois Supreme Court issued an opinion in Walton v. Roosevelt University, 2023 IL 128338 that affirms the validity of an important preemption defense for employers facing litigation under the Illinois Biometric Information Privacy Act (“BIPA”). Specifically, the Court ruled that Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (“LMRA”) preempts BIPA claims brought by bargaining unit employees covered by a collective bargaining agreement (“CBA”).
New Data Privacy Laws Now Playing at a Theatre Near You (or Coming Soon): Are You Ready?
California, along with Virginia, Colorado, Utah and Connecticut, have enacted privacy laws.
California is expanding the scope of its privacy protections with the California Privacy Rights Act (CPRA) to include employees, job applicants, former employees, beneficiaries of company benefits policies, independent contractors and B2B contacts, not just consumers. Each state law includes extra protections for sensitive data, which is a new concept across the country.