April Newsletter 2021

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 


Does Your Company Give Employees and Applicants a “Fair Chance”? Navigating Expanding Criminal Background Inquiry Bans Across the Country 

Multiple locations have enacted various “ban-the-box” or “fair chance” laws that prohibit or limit employers’ ability to ask about or consider a person’s criminal history as part of the job application process. The Fair Chance Act in New York City is one such act, which recently was radically expanded to make it ever harder for New York City employers to rescind a promotion or terminate an employee who was convicted of a crime during employment without needing to follow a multi-step process. Philadelphia also made similar changes and Maryland and Colorado have enacted relatively new ban-the-box laws. 

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Waters, Trone Introduce Historic Legislation to ‘Ban the Box’ on Employment Applications Nationwide Ahead of House Vote on Police Reform 

The Workforce Justice Act, which would encourage states to ‘ban the box’ on employment applications nationwide and give justice-impacted individuals a greater chance of gaining employment, has been introduced in the 116th Congress in an effort to reform a portion of the criminal justice system that affects more than 70 million people with an arrest or conviction record. According to Congressman David Trone (MD-06), justice-impacted individuals are primarily people of color and his own company saw a higher retention rate and gained more dependable employees when it banned the box and hired 500 returning citizens. 

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Divided Second Circuit Rejects Race Discrimination Claim Tied to Criminal Convictions Client Alerts 

The full Second Circuit Court of Appeals recently denied an en banc petition to review the dismissal of a class action that involved a disparate impact claim. An earlier panel of the Second Circuit concluded that the claim in Mandala v. NTT Data, Inc., relied on nationwide criminal conviction statistics, not the conviction rates among the pool of applicants qualified for the particular jobs offered by the employer. The full Second Circuit affirmed the decision. 

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So Much for “9 to 5”: Employers’ Consideration of Employees’ and Applicants’ Conduct Outside of Work 

In North Carolina, a private employer is free to avoid or end relationships with applicants and employees whose conduct, regardless of where or when it occurred, is objectionable to the employer. The rule has many important exceptions employers must consider that protect applicants and employees from unlawful treatment based on what they have done or said outside of work under federal law. Employers should aim to be consistent, document the decisions carefully and promptly, and implement and act in accordance with a clear, reasonable and lawful personnel policy that addresses non-workplace conduct. 

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FedEx Sued in New York Over Job Applicant Background Checks 

A lawsuit filed by a job applicant of FedEx Corp. claims the company violated New York’s Fair Chance Act when it checked his criminal history before deciding whether to offer him a job. The company is reviewing the allegations and will de-fend the lawsuit, Franklin v. FedEx Ground Package System, Inc. The applicant is asking the court to allow him to represent a class of job applicants with criminal records who were turned down by FedEx in New York. 

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Illinois Tightens Restrictions on Employer Use of Criminal Background Checks 

Senate Bill 1480 has been signed into law in Illinois, adding a new Section 103.1 to the Illinois Human Rights Act (IHRA) that severely restricts the ability of employers to rely on conviction records in making employment decisions. Effective immediately, the amendment prohibits use of a conviction record as the basis for an employment decision unless

1. There is a “substantial relationship” between one or more of the candidate’s prior convictions and the job at issue or

2. Employment would involve an “unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” 

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N.Y. Pols Propose ‘Clean Slate’ Legislation to Seal and Expunge Criminal Record

The proposal of New York’s new “Clean Slate” bill aims to create a two-step process to automatically seal and eventually expunge past convictions and make it easier for those who served time to find work and housing opportunities. Convictions would be automatically sealed one year after sentencing on the individual’s last misdemeanor conviction and three years after sentencing for felonies, as long as someone is off probation and parole, is not facing any pending criminal charges and is not on the sex offender registry. These would then not show up in most background checks for employment and housing and would be inaccessible for police department. They would, however, still be available for courts and prosecution purposes, as well as agencies statutorily mandated to fingerprint people for government-regulated jobs, licensing and clearances.

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How New Jersey’s Recreational Marijuana Law Significantly Affects Work- place Drug Testing

Three marijuana reform bills were signed into law in February by New Jersey Governor Phil Murphy. The New Jersey Cannabis Regulatory, Enforcement As- sistance, and Marketplace Modernization Act (A21) legalizes and regulates can- nabis use and possession for adults who are 21 and older. The two other laws decriminalize marijuana and hashish possession (A1897) and clarify marijuana and cannabis use and possession penalties for individuals younger than 21 years old (S3454). The recreational marijuana law that voters approved by ballot initiative on Election Day 2020 has several provisions that affect employers, as does the decriminalization of marijuana law.

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U.S. Office of Personal Management Provides Guidance to Federal Agencies on Consideration of Marijuana Use in Hiring Decisions

A memorandum has been issued by the Acting Director of the U.S. Office of Personnel Management (OPM) regarding “Assessing the Suitability/Fitness of Applicants or Appointees on the Basis of Marijuana Use; Maintaining a Drug-Free Workplace.”

Guidance is offered to help federal agencies deal with “increasingly encountering individuals whose knowledge, skills and abilities make them well-qualified for a position, but whose marijuana use may or may not be of concern when considering the suitability or fitness of the individual for the position,” according to Acting Director Kathleen M. McGettigan. The agency must consider several factors when determining whether an applicant is suitable or fit for a particular government agency job. Further, McGettigan said, prior marijuana use is not automatically disqualifying and agencies should exercise care before making a determination of unsuitability for criminal conduct based on marijuana possession.

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Medical Marijuana and the Construction Industry: Effective Drug Testing Policy and Compliance

Mississippians voted last year to legalize medical marijuana, but the tension between federal and state law presents new challenges for contractors, especially those working in multiple states and jurisdictions. The Occupational Safety and Health Act’s general duty clause requires contractors to maintain a safe job site and work environment “free from recognized hazards that are likely to cause death or serious physical harm,” but it can be difficult to determine when an employee may be impaired and a drug test is warranted.

While some states require employee accommodation for medical use, other states that have legalized medical marijuana do not. It is important for businesses to develop a well-defined drug policy to minimize the risk of harm to persons and property and decrease the likelihood that drug testing and disciplinary action arising from marijuana intoxication will create liability for adverse employment decisions. Once developed, a contractor should administer a consistent drug testing program.

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Minneapolis Becomes Latest City to Ban Use of Facial Recognition Technology

An ordinance has been passed by the Minneapolis City Council that prohibits the city from buying facial recognition technology or using any data derived from it. It also creates a process for city departments to request additional permitted uses of facial recognition programs and data through an exception process. The ordinance, however, does not include an exception for providing access control and security for employees in workplaces.

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Proceeding with Biometric Caution: Illinois Courts to Decide Critical BIPA Issues

Illinois’ Biometric Information Privacy Act (BIPA) has opened the door for a whole new set of class actions, with employees asserting that employers violate the Act by utilizing timekeeping systems that require employee fingerprints, or other “biometric identifiers” or “biometric information.” Cases continue to increase into 2021 and several are worth keeping an eye on, including McDonald v. Symphony Bronzeville Park LLC (the potential complete defense case), Tims v. Black Horse Carriers, Inc. (the potential limitations defense), and Cothon v. White Castle Systems, Inc. (the potential per-scan defense case). Employers should take appropriate steps to ensure they are meeting BIPA requirements.

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Florida Data Privacy Bill

A bill in Florida would create new obligations for covered businesses and greatly expand consumers’ rights concerning their personal information, such as a right to notice about a business’s data collection and selling practices. House Bill 969 also would establish a private cause of action for consumers affected by a data breach involving certain personal information when reasonable safeguards were not in place to protect that information. The bill would amend the state’s Florida Information Protection Act of 2014 (FIPA), to expand the definition of “personal information” to include biometric information. In the event of a data breach involving many consumers, $100 to $750 per violation could add up and entail serious and substantial exposure.

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Virginia Enacts New Consumer Data Privacy Law

The newly enacted Virginia Consumer Data Protection Act (VCDPA), which goes into effect on January 1, 2023, gives consumers certain rights with respect to their personal data. The VCDPA applies to all persons that conduct business in Virginia or produce products or services that are targeted to Virginia residents and that

  1. Control or process persona data of at least 25,000 consumers during a calendar year or
  2. Control or process personal data of at least 25,000 consumers and derive over 50 percent of gross revenue from the sale of personal data. While the VCDPA does not create a private right of action for consumers, it does provide the AG an opportunity to seek injunctive relief and impose civil penalties of up to $7,500 per violation.

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E-Verify Implements Call-in Process to Resolve Citizenship Mismatch TNCs

The United States Citizenship and Immigration Services (USCIS) has announced an E-Verify policy update that provides employees who receive a Social Security Administration (SSA) Tentative Non-confirmation (TNC) with a “citizen mismatch” reason with the option to call the Department of Homeland Security (DHS) to resolve their cases. The policy is intended to reduce the significant backlog of pending social security TNCs caused the pandemic. Employers are encouraged to update their E-Verify TNC process and tutorials to include a review of the SSA Further Action Notice (FAN) letter for citizenship status mismatch language; men- tion that employees can call DHS when discussing a citizenship status mismatch TNC; and be careful to avoid asking employees too many questions about their citizenship status.

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Nationwide Screening Services

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 ac- tions or consequences taken without the guidance of a licensed attorney or professional consultant.

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