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
Colorado Enacts Legislation Restricting Employers From Requesting AgeRelated Information From Job Applicants
Senate Bill 23-058 has been signed into law in Colorado. Effective July 1, 2024, the Job Application Fairness Act (JAFA) prohibits employers from inquiring about a job applicant’s age during the hiring process. Specifically, employers are forbidden from asking about age, date of birth and dates of attendance at or graduation from an educational system.
EEOC Issues Guidance on Using Artificial Intelligence for Employment Decisions
The Equal Employment Opportunity Commission (EEOC) issued guidance in May on employers’ use of Artificial Intelligence (AI) in employment selection decisions and the potential for a disparate or adverse impact under the Title VII of the Civil Rights Act of 1964, particularly pertaining to race, color, religion, sex or national origin. AI tools should be monitored internally just as non-AI tools are monitored.
New York Legislature Bans Consideration of Most Older Convictions in Employment Decisions
The New York Legislature passed the “Clean Slate Act,” which, if signed, would provide for the automatic sealing of the records of certain convictions after specified periods of time. The bill aims to increase employment opportunities for those with past criminal histories who have had no repeat convictions. In addition, the New York State Human Rights law would be amended to prohibit employers from making any inquiry regarding or discriminating against individuals based upon automatically sealed conviction records.
Hiring Managers Say They Check Candidates’ Social Media for Age, Political Activity
A recent survey from ResumeBuilder.com revealed that almost 75 percent of hiring managers said they check applicants’ social media, with the majority doing so to obtain answers to questions they can’t ask job candidates. Forty-one percent agree that the practice is “definitely” acceptable at their company, while just six percent saying they believe it to be unacceptable.
LEGAL ISSUES
District Court Preliminarily Approves $2.7 Million FCRA Settlement
The U.S. District Court for the Eastern District of California has preliminarily approved a class action settlement, which would require a company to pay $2.7 million to resolve allegations that it provided false information on credit reports to auto dealers. Specifically, the company is accused of inaccurately stating that plaintiffs were listed on the U.S. Treasury Department’s Office of Foreign Assets Control’s (OFAC) Specially Designated Nationals (SDN) list.
DATA PROTECTION & PRIVACY
Finalization of Regulations Clears the Path for Employers to Complete California Privacy Rights Act Compliance Efforts Before June 30, 2023, Deadline
California authorities will begin enforcing the regulations of the California Privacy Rights Act (CPRA) on July 1, 2023, so it is important for employers to understand how the finalized regulations vary from the CPRA’s plain language. A second rulemaking process has commenced to address notable omissions, but key areas of the regulation include notice requirements, individual data rights and vendor contracting.
7 Steps to Comply with the CCPA
There are seven steps businesses can take to achieve full compliance of the California Consumer Privacy Act (CCPA). These include 1. Inventory and map all consumer data, including employee and job applicant data, 2. Take appropriate steps to secure all consumer and employment-related data, 3. Prepare and provide a “notice at collection” to all consumers at or before collecting any consumer data, 4. Prepare and post a comprehensive privacy policy on your website, 5. Deploy a process to receive and respond to consumer requests from all consumers, 6. Implement data minimization rules and 7. Train all managers and employees on all CCPA requirements in which they play any role.
Data Protection Impact Assessments: Are You Ready?
Several comprehensive privacy bills have been enacted across the country and a few states, including Montana, Tennessee, and Florida, are close to enacting their own. A common thread among them is the requirement to conduct and document a data protection assessment in various circumstances. The requirements can be extensive, so it is important to explore all available information.
Florida Added to Growing List of New Comprehensive Consumer Privacy Laws
Senate Bill 262 has passed in Florida, establishing the state’s Florida Digital Bill of Rights (FDBR). Effective July 1, 2024, the law is modeled off of other states’ consumer privacy laws, but does contain several provisions that make it unique, including a complicated applicability threshold, additional opt-out rights and consent requirements, and exclusive enforcement by the Attorney General.
Navigating Data Protection Laws: Using European Clauses as the Foundation for U.S. Agreements
Because state and federal personal data privacy laws vary significantly across the country, businesses should consider following the strictest of all: the General Data Protection Regulation (GDPR). Europe’s data privacy law, as well as its “Standard Contractual Clauses (SCCs) offer a clear framework for companies striving to be in compliance with data privacy provisions.
Illinois Legislature Advances Proposed Amendment to Right to Privacy in the Workplace Act
Senate Bill 1515, which would amend the Illinois Right to Privacy in the Workplace Act, has been passed by the Illinois legislature. The law would mandate a specified process employers would need to follow if they choose to take an adverse employment action against an employee after receiving notice from any Employment Eligibility Verification Systems.
An (Im)Perfect 10: Indiana, Tennessee, Montana & Texas Pass Consumer Privacy Laws
Though similar in nature, state privacy laws in California, Virginia, Colorado, Utah, Connecticut, Iowa, Indiana, Tennessee, Montana and Texas each contain inconsistencies and unique aspects. The Indiana Consumer Data Protection Act (ICDPA), for instance, will apply to businesses that control or process the personal data of at least: 100,000 consumers; or 25,000 consumers, and derive more than 50% of their gross revenue from personal data sales, while the threshold for coverage by the Tennessee Information Protection Act (TIPA) is narrower than any of the other state laws.
Navigating Data Protection Laws: Using European Clauses as the Foundation for U.S. Agreements
Because state and federal personal data privacy laws vary significantly across the country, businesses should consider following the strictest of all: the General Data Protection Regulation (GDPR). Europe’s data privacy law, as well as its “Standard Contractual Clauses (SCCs) offer a clear framework for companies striving to be in compliance with data privacy provisions.
Texas Passes Data Privacy and Security Act
The Texas Data Privacy and Security Act has been passed in Texas. The Act shares many similarities with Virginia. If signed into law, the Act would take effect on July 1, 2024, and would apply to a person that 1. Conducts business in Texas or produces products or services consumed by Texas residents and 2. Processes or engages in the sale of personal data.
Montana’s Comprehensive Privacy Law Signed by the Governor
The Montana Consumer Data Privacy Act (CDPA) has been signed by the governor making it the fifth state to pass a comprehensive privacy law this year. Effective Oct. 1, 2024, a “consumer” is defined as a Montana resident acting in an individual capacity, not residents acting in a commercial or employment context, or otherwise in a business-to-business or government agency context. The CDPA follows the same role-based processing model as the other state privacy laws.
DRUG & ALCOHOL SCREENING
Federal Court Holds That Employees Cannot File Private Lawsuits Against Their Employers Under New Jersey Cannabis Law
The U.S. District Court for the District of New Jersey has found that the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act does not create a private right of action for individuals who believe their rights have been violated under the Act. The court pointed out that the New Jersey Legislature did not explicitly state how the refusal-to-hire provision of the Act could be enforced and by whom, and what, if any, remedies would be available.
The Opioid Epidemic and the Workplace
In 2021, the Centers for Disease Control and Prevention (CDC) predicted the number of drug overdose deaths was 109,179 and of that number, more than
82,000 could be attributed to opioids. The opioid epidemic complicates the work- force for employers, who must be prepared to legally and effectively navigate an addiction scenario. A few topics employers should address include drug testing, plans of action should an overdose event occur, and the signs of intoxication.
Medical Marijuana, Employees Who Drive and the Risk of a DUI?
The passage of the Pennsylvania Medical Marijuana Act (MMA) has led to a top question regarding what to do with employees who use medical marijuana and work in safety sensitive positions. Two court decisions have helped provide clarity, one involving employees who drive. The argument is strong for prohibiting an employee who utilizes medical marijuana from driving, but it remains unclear whether courts will be persuaded.
Minnesota Legislature Passes New Recreational Marijuana Bill
Minnesota Governor Tim Walz is expected to sign a bill that would legalize marijuana for recreational use. House File 100 allows individuals 21 and older to possess and transport various levels of cannabis products, consume it in private/ public areas, and grow it. The bill would limit employers’ ability to refuse to hire individuals or discipline employees for their use of cannabis off premises and not during work hours.
Washington Legislature to Employers: Don’t Fear the Reefer
Washington employers soon will be restricted from rejecting most job applicants based on their off-duty cannabis use. Effective Jan. 1, 2024, a new law will mean no one can be rejected because of marijuana use outside of work and away from the workplace, or because of pre-employment drug tests that show the use of marijuana. Washington employers can use pre-employment drug tests to screen for other recreational drugs and the new law does not apply to applicants for certain narrowly defined positions.
ICE Reinstates Employers’ Duty to Inspect I-9 Documents in Person
IMMIGRATION STATUS & EVERIFY
The Immigration and Customs Enforcement (ICE) has announced that employers
must resume in-person physical inspection of I-9 documents this summer. Beginning July 31, 2023, employers may no longer examine the I-9 documents of new employees remotely or virtually. In-person physical inspections must take place within three days of hire, as well as of those who were hired since March 2020 who did not submit their I-9 documents for in-person examination previously. Read more
BIOMETRIC ISSUES
FTC Adopts Biometric Policy Statement
The Federal Trade Commission has issued a policy statement warning that false, misleading, or unsubstantiated statements made about the accuracy of biometric information technologies could lead to enforcement action if it is determined the actions are “deceptive” and “unfair” in violation of Section 5 of the FTC Act.
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