June 2018

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


Workers with Criminal Records

A new study commissioned by the Society for Human Resource Management (SHRM) and the Charles Koch Institute (CKI) revealed that about two-thirds of human resource professionals are open to hiring or have hired applicants with criminal histories. Employers who choose to hire those with criminal records should consider the real and perceived risks and should communicate their policies and practices to their employees. Noteworthy findings include: More than 80 percent of managers and two-thirds of HR professionals feel that those with records bring value to the company; the majority of workers say they are willing to work with individuals with criminal records; and a demonstrated consistent work history often overrides an employee’s past criminal history.

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Vermont Enacts Salary History Inquiry Law

Vermont has joined several other states that have enacted a law to prohibit employers from inquiring about, seeking or requiring salary history information from prospective employees. Taking effect July 1, employers and their agents will be prohibited from inquiring about or seeking information regarding current or past compensation, requiring that current or past compensation satisfy minimum or maximum criteria, and determining whether to interview based on current or past compensation. Voluntary disclosure, however, is an acceptable reason for an employer to seek confirmation.

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Connecticut Enacts Salary History Inquiry Law

A bill has been signed into law by Connecticut Governor Dannel Malloy that will restrict employees from inquiring about applicants’ salary history during the hiring process. The law, which will take effect Jan. 1, 2019, will permit employers to inquire about “other elements of a prospective employee’s compensation structure, as long as such employer does not inquire about the value of the elements of such compensation structure.” In addition, the law doesn’t apply to any actions taken by an employer or its agent pursuant to any federal or state law that authorizes the disclosure or verification of salary history for employment purposes.

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LEGAL ISSUES


Portion of Philadelphia Salary History Ban Ruled Unconstitutional

Philadelphia Federal Judge Mitchell S. Goldberg recently held that the portion of the city’s salary history ordinance that prohibits an employer from inquiring about a prospective employee’s wage history is unconstitutional because it violates the First Amendment’s free speech clause. The judge also held that the portion of the law prohibiting employers from relying on wage history to determine a salary did not implicate constitutional concerns. In January 2017, Philadelphia became the first city to adopt a “salary history” ban, which prevent employers from asking about wage history or requiring prospective employers to disclose wage history as a condition of employment.

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Another Change to Massachusetts Ban-The-Box Law

Massachusetts employers soon will no longer be permitted to inquire about convictions and sealed or expunged records for employment purposes. About 10 years ago, the state became the second to enact a “ban-the-box” law and on Oct. 13, a criminal justice reform bill, signed by Governor Charlie Baker, reduces the five-year period for inquiring about misdemeanors to three years, among other amendments. In addition to being prohibited from asking about sealed records, employers may not ask about a criminal record that has been expunged.

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Bank Moves to Dismiss Background Screening Class Action Complaint Based on Federal Preemption Argument

In March, PNC Financial Services Group, Inc., moved to dismiss a class action complaint filed by Damian McCoy in the Western District of Pennsylvania. The individual sued the business after his conditional employment offer was revoked when a 2011 arrest was discovered. McCoy claims that, because the felony and misdemeanor charges had been withdraw, the revocation of his employment offer violates Pennsylvania’s Criminal History Record Information Act (CHRIA). The law prohibits employers from considering criminal history record information that doesn’t rise to the level of conviction. PNC argued that the federal banking law, Federal Deposit Insurance Act (FDIA), imposes different and conflicting requirements on federally-insured banks.

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Former Employees Hit Naples Hotel Group with FCRA Class Action Over Background Checks

A putative Fair Credit Reporting Act (FCRA) class action, filed Feb. 13 in the Ninth Judicial Circuit Court in Orange County, Fla., has been removed by Naples Hotel Group LLC. The lawsuit alleges that Naples “improperly obtained and used consumer reports about prospective and existing employees without complying with the FCRA’s disclosure and authorization requirements.” Lead plaintiffs Shawana Sanders and Kenyatta Williams, former employees of the business, say the company’s “extraneous provisions” distracted them from understanding the import of the disclosure.

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Background Screening Company Defeats FCRA Claim with Standing and Effective Procedures Defenses

An Ohio plaintiff’s claim under the Fair Credit Reporting Act (FCRA) was thrown away because he couldn’t show that the report caused him an injury or that the background screening company failed to maintain reasonable procedures to ensure accuracy. Thomas Black filed the class action suit against General Information Solutions (GIS) after the company performed a background check. The vendor who was assigned the task reported a robbery charge that did not result in a conviction, which had been dismissed. The report was thrown away after the plaintiff submitted a dispute, but he failed to return the requested references and was no longer considered. The Court determined Black suffered no harm as the result of GIS’ alleged violation of the FCRA.

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Ohio Court Throws Out FCRA Case Based on Initial Grade

Plaintiff Deloris Reid disclosed that she had been convicted of a misdemeanor assault a year before applying with grocery retailer Kroger. She filed a putative class action suit in the Southern District of Ohio under the Fair Credit Reporting Act (FCRA) after General Information Solutions, Inc. (GIS) discovered a separate felony conviction during her background check. Reid disputed the report and GIS later determined that the charged had been reduced to a misdemeanor. Reid still was ineligible for hire based on the temporal proximity of her misdemeanor assault conviction. The Court rejected her resulting argument that Kroger violated the FCRA by taking an adverse action without providing her with a copy of her initial background check and description of her FCRA rights, finding that the grade was only preliminary.

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DRUG SCREENING

Workforce Drug Positivity at Highest Rate in a Decade, Finds Analysis of More than 10 Million Drug Test Results

The 30th year of the Drug-Free Workplace Act and the Quest Diagnostics Drug Testing Index (DTI) continues to demonstrate that drug positivity rates are on the rise. For instance, the positivity rate for cocaine has increased for the fifth year in a row in the general United States workforce, while methamphetamine use has skyrocketed in the Midwest and South regions. Important to note was the decline in positivity rates for opiates in the general U.S. workforce in urine drug testing. The Centers for Disease Control has noted that the overall national opioid prescribing rate in 2017 fell to the lowest in 10 years. It should come as no surprise that marijuana positivity continued to increase in the general workforce due to the new legalization statues.

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Drug Using Employee? Better Conduct An “Individualized Assessment” Before You Fire!

A one-size-fits-all approach to employee termination as the result of positive drug tests simply isn’t realistic. A recent lawsuit was settled in South Carolina for $5,000, after the termination of a teacher, who disclosed information regarding his prior opiate addiction and participation in a supervised medication-assisted treatment program. The employer also must face a consent decree, ordered by the Court, which will last five years and requires the business to amend its written drug use policy, create an Americans With Disabilities Act-compliant procedure, provide annual training and report to the Equal Employment Opportunity Commission (EEOC) the identities of all applicants who were denied employment and those who were terminated due to current or past alcohol, drug or substance use.

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2018 Worksite Enforcement Investigations Already Double 2017 Total

The U.S. Immigration & Customs Enforcement (ICE) has reportedly doubled the number of audits that it conducted during the entire 2017 fiscal year. In May, the agency’s Homeland Security Investigations (HSI) unit reported opening 3,510 worksite investigations in the current fiscal year, which includes 2,282 employer I-9 audits, 594 criminal and 619 administrative worksite-related arrests. Those in violation of the law could face both criminal and civil penalties, which last year resulted in $97.6 million in judicial forfeitures, fines and restitution, and $7.8 million in civil fines.


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IMMIGRATION & eVERIFY ISSUES

2018 Worksite Enforcement Investigations Already Double 2017 Total

The U.S. Immigration & Customs Enforcement (ICE) has reportedly doubled the number of audits that it conducted during the entire 2017 fiscal year. In May, the agency’s Homeland Security Investigations (HSI) unit reported opening 3,510 worksite investigations in the current fiscal year, which includes 2,282 employer I-9 audits, 594 criminal and 619 administrative worksite-related arrests. Those in violation of the law could face both criminal and civil penalties, which last year resulted in $97.6 million in judicial forfeitures, fines and restitution, and $7.8 million in civil fines.


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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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