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.
EMPLOYMENT SCREENING NEWS
Deepfakes and Stolen PII Utilized to Apply for Remote Work Positions
The FBI Internet Crime Complaint Center issued a warning about the use of deepfakes and stolen Personally Identifiable Information to apply for a variety of remote or work-at-home positions. Deepfakes include a video, an image or recording convincingly altered and manipulated to mis-represent someone as doing or saying something that was not actually done or said.
The remote or work-from-home positions identified in these reports include information technology positions as well as positions providing access to customer PII, financial data, corporate IT databases and/or proprietary information.
Back to Basics: Are Your Background Check’s Consumer Report Disclosures FCRA Compliant?
In order to be compliant with the Fair Credit Reporting Act (FCRA), employers must provide the employee or applicant with a written consumer report disclosure before using a consumer reporting agency or third-party vendor to conduct a background check. Failure to do so could lead to significant liability, but compliance is fairly simple with a few easy steps.
Des Moines Passes ‘Ban the Box’ Law Prohibiting Criminal Inquiries on Job Applications
A “ban-the-box” law was passed in November 2021 in the city of Des Moines, Iowa. The law makes it “illegal and discriminatory” for employers to include criminal history inquiries on an application and inquiries into criminal history or to conduct criminal background checks before a conditional offer of employment.
Arizona Passes Third Law Dealing with Sealing of Criminal Records
Proposition 207 is the third law dealing with sealing and expunging criminal records in Arizona. In 2020, Arizona approved legalizing recreational marijuana, and created a process for minor marijuana offenses to be expunged. In 2021, a law was passed to “set aside” criminal records, which can dismiss the legal penalties that come with having a criminal record such as being prohibited from owning a firearm or getting a license for certain jobs. This law (S.B. 1294) takes it one step further, allowing individuals to petition to seal certain criminal records.
Date of Birth (DOB) Availability in California
On May 24, 2022, Senate Bill 1262 (SB 1262) passed in the California State Senate by a unanimous vote. If enacted, the legislation would help stop delays in criminal background checks by again allowing public access to “identifiers” used to match individuals to court records such as the defendant’s date of birth (DOB).
Clean Slate Laws are Taking Hold: Colorado Joins List
The state of Colorado has become the seventh state to enact a Clean Slate Act in support of automatically clearing certain criminal records after the passage of a prescribed time period and the satisfaction of any other set prerequisites. In Colorado, records relating to civil infractions will be sealed four years following disposition. The time period extends to several years for petty offenses and misdemeanors and generally to 10 years for felonies.
DRUG SCREENING ISSUES
Washington, D.C. Bill Would Limit Employers’ Ability to Discipline Based on Marijuana Testing
The Cannabis Employment Protections Act of 2022 was passed by the Council of the District of Columbia this month. If signed, the bill would prohibit employers, with certain exceptions, from “refus[ing] to hire, terminat[ing] from employment, suspend [ing], fail[ing] to promote, demot[ing], or penalize[ing] an individual” due to an individual’s “use of cannabis,” “status as a medical cannabis program patient” or having “the presence of cannabinoid metabolites in [their] bodily fluids in an employer- required or requested drug test without additional factors indicating impairment.
Employer Drug-Testing Rules Clipped By Rhode Island Marijuana Legalization
The Cannabis Act was signed into law in Rhode Island, legalizing recreational cannabis. The Act extends employment protections to employees who use marijuana during non-working hours. Although employers are still permitted to implement drug -use policies that prohibit employees from being under the influence in the workplace, the law limits an employer’s ability to take adverse action. Some exceptions do apply for safety-sensitive positions, collective bargaining agreements and federal contractors.
A Month into Recreational Cannabis Sales, NJ Employers Still Lack Guidance on Drugfree Workplace Enforcement
In April, recreational cannabis sales began in New Jersey, amounting to more than $20 million in sales, but employers in the state have been left with unanswered questions. Final rules of the New Jersey Cannabis Regulatory Commission (CRC) are anticipated this summer and are expected to contain details regarding the “Workplace Impairment Recognition Expert certification” (WIRE) and evaluation process employers must use.
Overhauling Cannabis Workplace Drug Testing: The Shift to Fitness-for-Duty and Post-Hire Testing
Zero tolerance policies are no longer feasible in the workplace, as shifting laws continue to lead to a rising number of employees who use cannabis. Conventional cannabis tests cannot determine impairment, so it would be unfair to rely on traditional screening methods. Post-hire testing through the use of a breathalyzer at a predetermined period after a new employee comes on board is one way to mitigate risk, while accepting the changing cannabis landscape.
One Step Closer: N.C. Senate Passes Medical Cannabis Legislation
North Carolina is one step closer to legalizing medical cannabis. It was a 35-10 vote to legalize marijuana at the North Carolina Senate under North Carolina’s Compassionate Care Act. If passed, patients with certain illnesses and a physician’s prescription would be permitted to purchase cannabis and cannabis-infused products at state-regulated dispensaries.
Pre-Employment Drug Testing Not Compensable Under California Law Holds Ninth Circuit
The Ninth Circuit Court of Appeals has upheld the district court ruling in Johnson v. WinCo Foods Holdings, Inc., et al., holding that plaintiffs who were not yet employees when they took drug tests were not entitled to compensation for the time spent being tested. The district court ruled that class members were not employees of WinCo when they underwent drug testing and therefore were not entitled to compensation.
Americans Overwhelmingly Say Marijuana Should Be Legal for Recreational or Medical Use
A new survey conducted by Pew Research Center in April 2021 indicates that 91 percent of U.S. adults say either that marijuana should be legal for medical and recreational use (60 percent) or that it should be legal for medical use only (31 percent). Just a small percentage – one in ten – say marijuana should not be legal for use by adults.
DATA PROTECTION & PRIVACY
Connecticut Data Privacy Act – What Businesses Need to Know
The Connecticut Data Privacy Act (CTDPA), which shares similarities with the consumer privacy laws in Virginia and Colorado, goes into effect July 1, 2023. The CTDPA applies to anyone conducting business in Connecticut or producing products or services targeted to Connecticut residents. The CTDPA does not contain a revenue threshold, but it does include exemptions.
Draft CPRA Regulations Issued by the California Privacy Protection Agency
The California Privacy Protection Agency (CPPA) has released a working draft of regulations to the California Privacy Rights Act (CPRA). The 66-page document proposes new and revised definitions, extensive new personal information notice and collection requirments, rules for obtaining consumer consent, restraints around sharing or selling personal information to third parties and consumer opt-out request confirmations, among other topics.
Employee and Personnel Personal Information – Privacy and Employment Law Intersect
Businesses that are subject to the California Privacy Rights Act (CPRA) will need to reconsider their privacy practices, effective January 1, 2023. The CPRA applies, even if the company does not have offices in the state, if they meet one of two thresholds and do business in California. Businesses can prepare by drafting new or updating existing personnel privacy policies.
Job Applicants, Diversity Data, and Privacy Compliance under the GDPR: What You Need to Know
Companies located in the United States that seek to collect Sensitive HR Data in the EEA/ UUK and transfer it to the U.S. in compliance with the General Data Protection Regulation (GDPR) should consider several factors. These include collection activities, establishing a legal basis for processing, processing restrictions, the required Data Protection Impact Assessment (DPIA), the designation of a Data Protection Officer, safeguarding the transfer of data, and regulatory oversight and penalties.
Draft Released of the Bipartisan American Data Privacy and Protection Act
Lawmakers have released draft bipartisan comprehensive privacy legislation – the “American Data Privacy and Protection Act.” The Act borrows a number of concepts from previously introduced legislative proposals, but also includes a few novel approaches. While the bill recognizes several exceptions to its requirements, it prohibits covered entities from collecting, processing, or transferring covered data beyond what is “reasonably necessary, proportionate, and limited to” 1. Provide or maintain a “specific product or service requested by an individual,” or a communication by the covered entity to the individual “reasonably anticipated within the context of the relationship” or 2. A purpose expressly permitted by the bill.
Job Applicants, Diversity Data, and Privacy Compliance under the GDPR: What You Need to Know
Companies located in the United States that seek to collect Sensitive HR Data in the EEA/UUK and transfer it to the U.S. in compliance with the General Data Protection Regulation (GDPR) should consider several factors. These include collection activities, establishing a legal basis for processing, processing restrictions, the required Data Protection Impact Assessment (DPIA), the designation of a Data Protection Officer, safeguarding the transfer of data, and regulatory over- sight and penalties.
IMMIGRATION STATUS & EVERIFY
DHS Proposal on Virtual I-9 Review is Near
The Department of Homeland Security (DHS) has plans to issue a proposed rule allowing virtual document examination options for reviewing the I-9 “in certain circumstances or with respect to certain employers.” Many employers want a remote review option for hiring remote workers but have called for better remote examination methods.
Tennessee’s Revised Mandatory E-Verify Law Applies to More Employers
Effective January 1, 2023, private employers in Tennessee with at least 35 employees will be required to use E-Verify and maintain case results. In addition, for those with fewer than 35 employees or an employer that does not have internet access who wish to use E-Verify, the office of employment verification assistance can enroll the employer in E-Verify or conduct the work authorization status checks. Other new provisions will also be in place.
Persona Launches Biometric KYB/KYC Automation Platform
ID verification provider Persona has released an automated know your business and know your customer platform that authenticates individuals with biometrics for regulatory compliance with streamlined identity verification.
The company says the KYB/KYC platform features customization of how information about businesses and individuals is collected and verified, automated customer support and a set of KYB and KYC checks. KYB and KYC checks include verifying identities with selfie face biometric verification.