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.
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EMPLOYMENT SCREENING NEWS
Fair Chance to Compete for Jobs Act of 2019
As part of the National Defense Authorization Act, the Fair Chance to Compete for Jobs Act of 2019 (FCA) passed congress, “banning the box” and its impact on the employment opportunities for people with records. Federal agencies and federal civilian and defense contractors may not request information on arrest and conviction history until a conditional job offer has been extended to the applicant; law enforcement positions involving access to classified or national security information and other specific positions are exempted from the law; and the U.S. Office of Personnel Management (OPM) will issue regulations implementing key features of the FCA, which will be adopted by the General Services Administration and other oversight entities enforcing the law. Those entities will adopt procedures for job applicants and private contractors to file complaints alleging violations of the law. Escalating penalties can be imposed after an initial written warning is issued to a federal agency representative or private contractor that violates the law.
Michigan Supreme Court Adopts Rule on Date of Birth (DOB) Redaction
The Michigan Supreme Court has adopted ADM File No. 2017-28 that amends an order of May 22, 2019, amending Rule 1.109 of the Michigan Court Rules regarding the redaction of dates of birth from court records used as identifiers by background screening firms. Effective April 1, 2022, the Michigan State Court Administrative Office (SCA)) “will maintain a list of authorized individuals who may have access to a party’s date of birth contained in a court record for purposes of verifying the identity of that particular person without the need to present a stipulation to the court.”
New York City Council Passes Bill That Requires Identifying the Minimum and Maximum Potential Salaries on Virtually All Job Advertisements
A bill has been approved in New York City that provides that it is an unlawful discriminatory practice for an employer of four or more people or employment agencies to advertise for a job without identifying the minimum and maximum salary for that position. The requirement applies to internal job postings with an organization, as well as to opportunities for promotions or transfers within a company. In addition, the bill provides that in determining the minimum and maximum salaries the employer must use good faith to determine, at the time of the job posting, what it would pay for the advertised job, promotion or job opportunity. The purpose of the law is to further New York City’s effort at achieving pay equity.
FMCSA Declares South Dakota Motor Carrier, Owner/Truck Driver, to be Immi- nent Hazards to Public Safety
Hall Trucking, based in Rapid City, South Dakota, has been deemed an imminent hazard to public safety by the Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA). The company has been ordered to cease all interstate and intrastate operations, and the owner has been prohibited from operating any commercial motor vehicle (CMV) in interstate commerce. An investigation revealed Hall Trucking was egregiously noncompliant with multiple federal safety regulations.
Reps. Dean and Hollingsworth Introduce the Clarity in Consumer Disclosures Act
Reps. Madeleine Dean (PA-04) and Trey Hollingsworth (IN-09) have introduced the Clarity in Consumer Disclosures Act, which will direct the Consumer Financial Protection Bureau (CFPB) to create clear, plain-language model forms for consumer reports so that employers can fulfill the requirements of the Fair Credit Reporting Act (FCRA).
Federal Fair Chance Act Will Soon Require Federal Contractors to ‘Ban the Box’
The federal Fair Chance Act to Compete for Jobs Act of 2019 (Fair Chance Act) was signed into law in December 2019, but only just took effect on Dec. 20, 2021, banning civilian and defense executive agencies from either awarding federal con- tracts or releasing payment to a contractor who violates the statutory requirements. Government contractors may not request a job applicant on the contract to disclose his or her criminal history information prior to the contractor’s extending a conditional offer of employment. Exceptions exist when consideration of the criminal history record is required by law, or the employee will have access to classified information or have sensitive law enforcement or national security duties, if hired.
DRUG SCREENING ISSUES
Cannabis: A Primer for New York Employers
Passed in March 2021, the Marijuana Regulation and Taxation Act (MRTA) legalizes adult-use (recreational) cannabis in New York State and establishes an Office of Cannabis Management (OCM) governed by the Cannabis Control Board. The Act makes changes to the Labor Law and generally prohibits adverse actions against employees who engage in off-site, recreational cannabis use. In addition, the state’s Medical Cannabis Program protects employees and requires employers to engage in the interactive process/cooperative dialogue when assessing the need for an accommodation for employees. MRTA makes it unlawful for an employer to refuse to hire, employ or license someone; terminate the employment of an employee; and otherwise discriminate against an individual in the case of compensation, promotion, and terms, conditions or privileges of employment. Some exceptions do apply, so it is important for employers to become familiar with the law.
Baltimore: City Officials Move to Abolish Pre-Employment Drug Screens for Many Public Employees
City officials in Baltimore have approved municipal provisions that suspend pre-employment drug screenings for public employees in non-safety sensitive positions. Testing will still apply for “positions of trust,” such as those involving children, the safety of others, money or sensitive materials. Similar policies have been enacted in other cities, such as Atlanta, Kansas City and Philadelphia.
Philadelphia’s Restrictions on Pre-Employment Marijuana Tests Become Effective January 1, 2022
Beginning January 1, 2022, the majority of employers in Philadelphia will be prohibited from requiring prospective employees to undergo testing for the presence of marijuana as a condition of employment. New York City and Nevada have similar laws in place and others are expected to follow. Exceptions apply to individuals applying to work in law enforcement positions; any position requiring a commercial driver’s license; any position requiring the supervision or care of children, medical patients, disabled or other vulnerable individuals; and any position in which the employee could significantly impact the health or safety of other employees or members of the public.
There is a Shortage of Collection Cups. Here is How It Impacts Your Drug Testing Program
The Department of Transportation (DOT) is facing a challenge as a nationwide plastics shortage means drug testing facilities don’t have enough collection cups. The shortage is the result of the high demand for personal protective equipment (PPE) and labor shortages caused by Covid, as well as the winter storm that hit Texas in February, which put a halt to the nation’s primary source of polypropylene and polyethylene. Employers should communicate with employees about the shortages, call collection sites ahead of time, use Foley’s collection site locator to find alternate sites, and make the switch from paper to digital Custody and Control Forms.
E-VERIFY & IMMIGRATION STATUS
2021 in Review: Top Ten I-9 and E-Verify Compliance Insights
The American Immigration Lawyers Association held its annual Employer Compliance and Worksite Enforcement Conference, identifying compliance issues facing employers today. The top 10 I-9 and E-Verify Compliance insights include: 1. I-9 compliance is complex and constantly evolving, 2. Virtual Verification (remote (I-9 inspection) isn’t perfect or for every- one, 3. Employers should focus on both compliance and employee experience, 4. The government wants to hear about a permanent virtual verification option, 5. When an I-9 notice of inspection is received, the reason likely won’t be identified, 6. IER spends roughly 80 per- cent of their time on I-9 enforcement of the anti-discrimination law, 7. When formulating hir- ing policies and recruiting practices, state law should be considered, 8. E-Verify may be free, but it’s also a potential landmine for employers, 9. An electronic I-9 system is only as good as its last release and 10. The next generation of E-Verify may put the employee in the driver’s seat.
Large Clothing Retailer Settles I-9 Discrimination Claims
A settlement has been reached between the Department of Justice and Gap, Inc., resolving claims that the company routinely discriminated against certain non-U.S. citizen employees in connection with their I-9 re-verification process. Investigations began in 2018 after a complaint from an employee that alleged unfair documentary practices. It was determined by the IER that the company engaged in a pattern or practice of discrimination against certain non-U.S. citizens because of their current or prior immigration status. Gap will pay $73,263 in civil penalties, provide back wages to certain affected employees, train thousands of its employees nationwide on proper I-9 processes, ensure that its electronic programs are compliant with applicable rules, and be subject to monitoring and reporting requirements for a three-year period.
DATA PROTECTION & PRIVACY
New York Latest State to Provide Additional Employee Privacy Protections with Electronic Monitoring Law
Effective May 7, 2022, New York State employers who engage in electronic monitoring of employee communications will be required to notify their workers of such monitoring. All employers in the state will be required to provide prior written notice to newly hired employees if they intend to monitor or otherwise intercept telephone conversations or transmissions, email, or internet access or usage of or by an employee by any electronic device or system, including but not limited to the use of a computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems (likely to include videoconferencing platforms).
FTC Finalizes Updates to GLBA Safeguards Rule to Implement Detailed Additional Security Requirements
The Federal Trade Commission (FTC) has published its Final Rule to amend the Standards for Safeguarding Consumer Information, which applies to “financial institutions” (including entities engaged in activities “incidental” to financial activities). The Final Rule contains significant revisions to the Safeguard Rule’s security requirements that will likely increase the time and effort required to remain com- pliant and largely implements the modifications to the Safeguards Rule that the FTC originally proposed in its 2019 Notice of Proposed Rulemaking (NPRM). In addition, the FTC concurrently published a separate Final Rule updating its Priva- cy of Consumer Financial Information Rule, and a Supplemental Notice of Pro- posed Rulemaking to solicit input on whether to adopt a requirement for financial institutions to report security events to the FTC.
MOTOR VEHICLE RECORDS
The Most Common DOT Clearinghouse Violation – and How to Avoid It
The pre-employment query of the Department of Transportation Clearinghouse results in more violations than any other aspect of the regulation. Employers should have employees sign a blanket consent form, which allows companies to run the required limited queries at least once every 12 months for the duration of employment. The document should be kept on file with the driver qualification file so that it can be easily referenced during an audit. Employers should take the time to verify that a full, pre-employment query is on file for every driver that has been hired since the regulation went into effect (January 2020).
New Clearinghouse Rule Now in Effect: What it Means for Your Drivers
The new Federal Motor Carrier Safety Administration (FMCSA) Clearinghouse Rule cracks down on drivers with one or more drug or alcohol violations in their past. Specifically, states will no longer be allowed to issue, renew or upgrade learner’s permits or commercial driver’s license to such drivers. Operators also will have their CLP or CDL privilege stripped from their licenses until they’ve undergone the required return-to-duty process and testing. The new rule aims at making the roadways as safe as possible and allows police to quickly spot prohibited drivers when running a license check during a traffic stop.