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
Lorenzo Pugliano CEO
Lpugliano@nsshire.com
EMPLOYMENT SCREENING NEWS
Unaware Background Investigator’s Mistake Leads to Horrific Crime
‘If you think training is expensive, try ignorance.’’ Here’s a very unfortunate example that fully illustrates this famous quote by Peter Drucker. It is likely that the Virginia State Police will learn what the cost of not properly training the background investigator involved in this situation really is.
A background investigator failed to check a would-be trooper’s mental health history, allowing him to be hired for the Virginia State Police the year before he sexually extorted and kidnapped a 15-year-old girl and killed three members of her family in California, officials said.
The background investigator queried the wrong database — the proper one was linked to firearms and would have pulled up the mental health order — and used the incorrect search code, Settle wrote. Using an incorrect search code meant the investigator did not see the mental health order — which would have disqualified Edwards from state police employment.
This investigator was the only one who was “unaware” of the requirement to search for mental health orders during the background process.
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Employer Alert: SB 731 Will Expand Sealing of Criminal Records
Effective July 1, 2023, SB 731 will provide for the automatic sealing of certain felony criminal records. Arrests that do not result in conviction will also be sealed. The law also permits individuals with violent of serious felony records to petition courts to order their criminal records sealed.
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New Arizona Law Will Allow Sealing of Criminal Records
A new law in Arizona is giving people a second chance. Arizonans can petition the court to get a criminal record sealed if they have completed their court sentence
and terms. Certain crimes like class one felonies, sexual offenses or serious violent offenses, like using a deadly weapon, cannot be sealed.
If they go and apply for employment, the employer will not be able to see that they have a criminal background which will also help for housing.”
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LEGAL ISSUES
Upcoming Changes in California’s Law Regarding Criminal Background Checks
In December, the Civil Rights Council of the California Civil Rights Department released draft revisions to the Fair Employment and Housing Act (FEHA) regulations that govern employers’ use and consideration of criminal history in employment decisions. The changes involve the prohibition of consideration of criminal history prior to a conditional offer of employment, denying an applicant employment because of conviction history and the Work Opportunity Tax Credit.
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Coinbase Reaches $100M Settlement Over Background Check Failures
Coinbase has been found to have violated anti-money laundering laws by failing to conduct adequate background checks. The company will pay a $50 million fine to the New York State Department of Financial Services and is required to spend $50 million on improving its compliance program. Problems were first recognized in May 2020 during routine supervisory examinations. The Department of Financial Services found “significant deficiencies” in various compliance programs.
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Online Public Records Aggregators Not Protected from FCRA Suit by Section 230
The U.S. Court of Appeals for the 4th Circuit has determined that Section 230 of the
Communications Decency Act (CDA) did not apply in the case of Henderson v. The
Course for Public Data, L.P., et al, because the online aggregator was an “information content provider that provided the improper information” and not merely providing a forum for its users to upload information The ruling is expected to influence the ongoing CDA reform debate.
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OCCUPATION FRAUD
Feds announce massive takedown of fraudulent nursing diploma scheme; 2 from South Jersey charged
A massive, coordinated scheme to sell false and fraudulent nursing degree credentials has been brought down by a joint federal law enforcement operation by Justice Department. As first reported by ABC News, officials said the scheme involved peddling more than $100 million worth of bogus nursing diplomas and transcripts over the course of several years — fake credentials that were sold to help “thousands of people” take “shortcuts” toward becoming licensed, practicing nurses. Overall, the conspiracy involved the distribution of over 7,600 fake nursing diplomas and certificates issued by Florida-based nursing programs, according to officials.
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BIOMETRIC ISSUES
Screening Company Must Face Biometric Privacy Claims In Court – AppealsPanel
A U.S. appeals court unanimously said a rental car service’s arbitration agreements with its customers does not shield a third-party company that verifies the identities of the service’s users from being sued under a unique Illinois biometric privacy law in court.
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DRUG & ALCOHOL SCREENING
New Eyeball-Tracking Headsets Identifies If Workers are High on the Job
The days of using pot at work could be coming to an end, thanks to portable headsets being rolled out that track an employee’s eye movements and assess whether they are actively high. The makers of the $399-per-month devices, known as Gaize, say they are already on order to big manufacturing, transport, energy and mining firms, while some US police forces are considering using them to test motorists.
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A Quandary as More Workers Test Positive for Drug Use
The Quest Diagnosis Drug Testing Index survey has found that from 2020 to 2021 overall positivity of drug use increased by 4.5 percent — an increase of 28.6 percent from 20172021. The largest driver was due to marijuana use, which has created difficulties for companies. Employers have a responsibility to understand state and federal laws, but they must also determine how to keep all employees safe while on the job.
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California Will Soon Protect Employees’ Off-Duty Cannabis Use
Effective January 1, 2024, California employers will be prohibited from discriminating against employees for off-duty cannabis use. AB 2188 adds two cannabis-related categories to the Fair Employment and Housing Act (FEHA) that will also be protected from discrimination: 1. Discrimination based on cannabis use “off the job and away from the workplace” and 2. Discrimination based on the results of an employer-required drug test finding a person to have “nonpsychoactive cannabis metabolites” in the person’s “hair, blood, urine, or other bodily fluids.”
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Employer Testing for Marijuana in New Jersey – A Complex Issue
The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) addresses the legal use of marijuana and related workplace issues. Based on the regulation, employers should not take adverse action or refuse to hire based solely on a positive marijuana test. This should only be done when physical signs or other evidence of impairment during work hours are observed.
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Federal Officials Plan to Add Fentanyl to Drug Test
Fentanyl could soon be added to a drug testing panel that would detect its use among safety-sensitive federal employees. The intent to test for the deadly drug is awaiting approval of a final rule by the U.S. Department of Health and Human Services authorizing oral fluid testing.
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Nevada Supreme Court Finds a Private Right of Action Under Nevada’s Medical Cannabis Law
The Nevada Legislature has passed a law that requires employers to attempt to make reasonable accommodations for its employees’ use of medical cannabis outside of the workplace. The Nevada Supreme Court recently decided that employers may sue employers who violate the law. The Court did not define what an employer must do to satisfy its obligation in that regard. Companies would be wise to consult legal counsel before terminating a person’s employment after testing positive for marijuana.
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Truckers Drug Conviction Raises Questions About CDL Holders and Marijuana Use
The Iowa Court of appeals has upheld a trucker’s drug conviction for marijuana possession. The driver had legally obtained the marijuana with a medical card in his home state of Missouri, but was traveling through Iowa, which prohibits the drug to be smoked, even when medically prescribed in a state that has legalized it for medicinal purposes.
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SAMHSA Announces 2021 National Survey on Drug Use and Health Results
Today, the U.S. Department of Health and Human Services’ (HHS) Substance Abuse and Mental Health Services Administration (SAMHSA) released the results of its annual National Survey on Drug Use and Health (NSDUH), which shows how people living in America reported about their experience with mental health conditions, substance use, and pursuit of treatment in 2021. The 2021 NSDUH national report includes selected estimates by race, ethnicity, and age group. It is the most comprehensive report on substance use and mental health indicators that SAMHSA has released to date.
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IMMIGRATION STATUS & EVERIFY
What’s In A Name? Helping Resolve Form I-9 Document Discrepancies
The I-9 is much more than a simple onboarding form – in fact, it’s just one piece of a larger verification process that must be undertaken by every US employer.
Even the most seemingly simple questions on the I-9 can raise thorny issues. Case in point: the first four questions in section 1 ask an employee to provide his or her name (including last name, first name, middle initial, and other last names used if any). Surely this must be the one area of the form that is completely without controversy or nuance, right?
The section 1 name fields in particular present a potential landmine for employers. Variances and discrepancies between what your employee writes on the I-9 and the documents that he or she provides may seem like a harmless error, or perhaps indication of something more. Employers participating in E-
Verify must also consider the various “naming” rules imposed by the system in order to help avoid a Tentative Nonconfirmation (Mismatch).
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High Inflation Pushes I-9 Civil Penalties Up by 7.7%
The Department of Homeland Security (DHS) has announced an increase to the civil penalties that can be assessed against employers for failing to complete their I-9s as required under the law. Penalties have increased from $252-$2,507 to $272-$2,701. The penalties for knowingly hiring, recruiting, referring, or retaining an unauthorized worker will increase to $676-$5,404 for the first offense; $5,404-
$13,508 for the second offense; and $8,106-$27,018 for subsequent offenses.
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DATA PROTECTION & PRIVACY
Building State Privacy Compliance Programs
The California Privacy Rights Act (“CPRA”) and Virginia Consumer DataProtection Act (“VCDPA”) came into force on January 1, 2023. Those states will be joined by new comprehensive laws in Colorado, Utah, and Connecticut in 2023. Unfortunately for companies seeking to build or modify compliance programs, the final requirements for the CPRA and the Colorado Privacy Act (“CPA”) are still in flux.
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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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