August 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


Updates to NYC Fair Chance Act Expand Protections for Applicants, Current Employees, Independent Contractors

Effective July 29, 2021, revisions to the New York City Fair Chance Act (FCA) will impose new requirements on New York City employers who evaluate criminal history information, including pending criminal charges, when making employment decisions that impact applicants, current employees, interns, freelancers, and independent contractors.

As amended, the FCA requires that employers solicit information on all “fair chance factors” and complete a fair chance analysis not only before disqualifying an applicant from employment, but also before taking an adverse action against a current employee. When an employer decides to take an adverse action against either an applicant or employee, they must provide a document, such as the NYCCHR Fair Chance Form, that sets forth the substantive basis for any disqualification decision, and review any responsive information timely submitted by the applicant or employee.

The amended FCA requirements apply to current employees, as well as independent contractors, freelancers, and interns, employers and contractors.

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Walmart Accused of Bias Against Workers with Criminal Histories

Walmart is facing a nationwide class action lawsuit that claims it discriminates against Black and Latino job applicants through a strict background check policy that fails to consider rehabilitation and other mitigating circumstances. Jacqueline Ramos filed the complaint, claiming the company’s policy violates state and federal law because it is not “job-related and consistent with business necessity.” Similar lawsuits have been filed against big businesses like Amazon, Macy’s, Uber and Wells Fargo.

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‘Ban the Box’ – Criminal History Inquiries Prohibited on Job Applications

In line with a nationwide trend of states prohibiting employers from seeking criminal history record information on an initial employee application form, the intention of legislature’s LD 1167 is to remove obstacles that preclude applicants with criminal histories from gainful employment in the state of Maine. Signed into law July 6, 2021, employers will be prohibited from requesting criminal history record information on an initial employee application form or and from stating on an initial employee application form or advertisement that a person with a criminal history may not apply or will not be considered for a position. In addition, the law also prohibits an employer from otherwise specifying prior to determining a person is qualified for the position that an individual with a criminal history will not be considered.

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Nevada Now Among States Requiring Employers to Disclose Wage Ranges & Banning Salary History Inquiries

Nevada employers will soon be required to provide wage or salary range or rate information to new hire applicants and to employees who apply for promotions or transfers. Effective Oct. 1, 2021, employers and employment agencies in the state must proactively provide the “wage or salary range” or “rate” for a position in specific situations. The new law restricts private employers and employment agencies from inquiring into an applicant’s salary history. A private enforcement mechanism is discussed in each statute and civil action may be brought to district court against the alleged violating party. Employers may also be subject to administrative penalties.

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Rhode Island Enacts Comprehensive Pay Equity Law

Rhode Island has enacted a sweeping pay equity statute which takes effect on January 1, 2023. It amends the Rhode Island Equal Pay Law. The law seeks to “combat wage discrimination” by “strengthening and closing gaps in existing wage discrimination laws,” and does so by imposing new requirements on employers.

Rhode Island’s new law significantly expands the classes of individuals it protects by the law and adds significant new responsibilities for employers.

The new law also aims to establish pay equity by fostering greater transparency regarding an employer’s pay practices.

Rhode Island’s law requires an employer to provide a wage range for job positions.

The new law prohibits employers from relying on an applicant’s wage history in deciding whether to consider them for the position or determine their wage if hired.

In addition to the significant compliance obligations related to pay equity and wage transparency, the new law creates a so-called safe harbor for employers that voluntarily conduct an evaluation of their pay practices during the period from January 1, 2023 through June 30, 2026, although the protections afforded by such an audit are exceptionally limited.

An employer that has performed an audit and eliminated pay differentials, as described above, is not liable for liquidated damages or civil penalties. Applicants or employees may, however, still sue employers.

The Department of Labor & Training may investigate employers in order to enforce these provisions

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There Must be Real ‘Harm’ Before One Can Sue Under FCRA: Good News for Employers Who Perform Background Checks

There was good news for employers following the ruling of the United States Supreme Court in TransUnion LLC v. Ramirez, which held there must be a “concrete” harm before one can sue under the Fair Credit Reporting Act (FCRA). The case involved a class action suit by 8,185 individuals who sued the credit reporting agency for failure to allow reasonable procedures to ensure the accuracy of its reports. The ruling offers employers dealing with FCRA claims a defense against allegations of technical violations where only speculative injuries are alleged.

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Louisiana’s Latest Legislative Session Includes New Laws on Preemployment Background Checks, Natural Gas Pipeline Reporting Obligations, and Industrial Hemp

After a three-month legislative session, the Louisiana State Legislature has adjourned, filing more than 1,400 separate bills. 448 of those bills have become law after passing both legislative chambers and receiving Gov. John Bel Edwards’ signature. A wide range of issues is covered, including Act. No. 406 (HB 707), which prohibits employers from requesting or considering an arrest record or charge that did not result in a conviction when a background check reveals that information. Act No. 246 (HB 549) addresses hazardous material reporting obligations of natural gas pipeline operators and owners under the state’s Right-to- Know Law, codifying the existing practice of some natural gas pipeline operators, while Act. No. 336 (HB 640) eases restrictions on economic activity related to industrial hemp.

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Iowa Supreme Court Upholds Part of Waterloo’s ‘Ban the Box’ Ordinance

An Iowa Supreme Court decision affirms the regulation of Waterloo’s “ban the box” ordinance that businesses with more than 15 employees cannot ask about job applicants’ criminal histories until they extend a conditional job offer. It did, however, nullify the section of the ordinance that prohibits businesses from making decisions solely based on an applicants’ criminal record.

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Drug Overdose Deaths Hit Record High

Preliminary estimates released by the Centers for Disease Control and Prevention indicate that deaths due to overdose jumped by 29 percent from the year before. The reason for surge is complicated and experts say the crisis began building prior to the COVID-19 pandemic. José Benitez, executive director of Prevention Point Philadelphia, blames a combination of fewer treatment resources and more dangerous drugs for the lethal results. Other researchers point to governmental failures as a cause due to the U.S. Food and Drug Administration approving new synthetic opioids. Although the rise in deaths was consistent across all states, the South and West saw significant overdoses. Rates were also higher in black and Hispanic populations than white ones.

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Why Amazon’s Updated Marijuana Drug Testing Policy Could Have ‘Ripple Effect’

Amazon will no longer include marijuana in its comprehensive drug screening program for jobs that are not regulated by the United States Department of Transportation (DOT), a surprising move that could have a “ripple effect” on how other employers approach marijuana testing moving forward. Eighteen states, as well as Washington, D.C., have adopted laws that legalize some form of adult recreational use, according to the National Conference of State Legislatures, and Amazon isn’t the first business to adopt policies that take the new laws into account. Drug testing requirements aren’t expected to be dropped altogether, though, even for marijuana, especially for positions regulated by the DOT.

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Fingerprinting Requirement Could Bring Hiring and Retention Headaches for Providers

Healthcare workers in Connecticut that were hired during the pandemic have until July 20 to get fingerprinted for state-mandated background checks or risk being fired. In response to the memo from the state’s Department of Public Health, SEIU President Rob Baril warns that “terminating the employees would negatively impact the care in nursing homes,” requesting an extension until Sept. 20.

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Illinois Biometric Act Has Been a Class Action Nightmare, But Things May Get Better

There have been several high-profile class settlements that demonstrate the broad scope of the Illinois Biometric Information Privacy Act (BIPA), including Facebook, TikTok and Walmart. Two rulings could set the size and pace of future cases that allege BIPA violations, such as those expected to be reached in Tims v. Black Horse Carriers, Inc., which asks the Illinois Appellate Court to determine whether the one-year statute of limitations for privacy claims applies to claims brought under BIPA. The Illinois Supreme Court ruled in West Bend Mutual Ins. Co. v. Krishna Schaumburg Tan Inc., that an insurer must defend a tanning salon against a customer’s BIPA claims. Another appeal to watch is McDonald v. Symphony Bronzeville Park, LLC, in which the Illinois Supreme Court has been asked to determine whether the state Worker’s Compensation Act preempts the BIPA in the employment context.

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Amidst Uncertainty Surrounding the Scope of BIPA Liability, Hyatt Settles Employee Biometric Data Class Claims for $1.5 Million

Although hundreds of lawsuits have been filed alleging violations of the Illinois Biometric Information Privacy Act (BIPA), uncertainty still surrounds the use of employee biometric data. In one class action, Rapai v. Hyatt Corp., a former server at a Hyatt restaurant alleged that she and her colleagues were required to use a fingerprint-based time clock to punch in and out, but permission to do so was not requested before using employees’ fingerprint data. In addition, it was alleged that the hotel did not maintain any written policy on use of employee biometric data or otherwise inform its employees about the use, retention or destruction of said data. Upon review by the Illinois Supreme Court, a 1.5 million classwide resolution was reached.

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Blockchain Simplified. What Is It? How Can It Benefit You?

Although blockchain is fairly common, many people don’t know exactly what it is, how it works and how it can be beneficial. When information is recorded inside the blockchain – an online ledger – a “hash” can be used to identify a block and all of its contents. Changing anything within the block will cause the unique hash to change, while still containing the previous block, ultimately creating a blockchain. Once hashed together, the chain with links are virtually impossible to replace, creating a situation that cannot be faked or undone. Blockchain offers improved security and privacy, innovation and speed in which data can be processed.

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