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
EMPLOYMENT SCREENING
Philadelphia Expands Ordinance Limiting Employer Use of Credit Checks
Legislation has been signed by Philadelphia Mayor Jim Kenney that amends the Philadelphia Fair Practices Ordinance. Effective Feb. 20, 2021, the amendment expands the scope of covered employees under the Fair Practices Act to include financial institutions and law enforcement agencies operating in Philadelphia,
which were previously exempt from the ordinance’s requirements. Specifically, law enforcement agencies and financial institutions may not rely, in whole or in part, on credit-related information to take adverse employment action related to job applicants or employees, unless one of two exceptions apply. Employers should review existing policies and practices to ensure compliance with the amendment.
Illinois Set to Enact New Law Limiting Criminal Convictions in Employment Decisions
The Illinois Human Rights Act prohibits employers from considering an employee’s arrest history and now the state is taking things one step further in banning the use of criminal history in employment decisions. House Bill 1480 was passed, which provides that unless otherwise authorized by law, an employer may only consider an individual’s criminal conviction history if there is a substantial relationship between the criminal history and the position sought or held, or if the employer can show that the individual’s employment raises an unreasonable risk to property or to the safety or welfare of specific individuals or to the general public. The law, upon signing by the governor, will go into effect immediately.
LEGAL ISSUES
Big News for Background Screening: New Appellate Ruling Says FCRA Permits Reporting Unmatched Criminal Records
The U.S. Court of Appeals for the Eleventh Circuit confirmed in December that it is not inaccurate for a consumer reporting agency (CRA) to report a criminal or sex- offender record without matching the record to a subject consumer, so long as the CRA notifies the user that the record needs further investigation before being attributed to an individual. The decision was made in Erickson v. First Advantage
Background Services Corp. Keith Erickson filed suit after he applied to coach his son’s Little League team and the required background check uncovered his father’s sex-offender record. CRA First Advantage Background Services Corporation alerted Little League, explaining that the record was a name-only match and that the organization’s “further review of the State Sex Offender website is required in order to determine if this is your subject.” Erickson claimed the CRA violated the Fair Credit Reporting Act’s (FCRA) requirement that a consumer reporting agency “follow reasonable procedures to assure maximum possible accuracy” of information included in a consumer report.
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State Background Check Laws That Are Changing in 2021
Employment laws in the states prevent private employers from looking into an applicant’s criminal or credit histories, even though this is an important factor in making hiring decisions. Most states and even some cities have laws in place that allow criminal background checks. Employers in certain industries are required to conduct background checks on their applicants. Georgia, St. Louis and Washington are updating background check laws this year, but it’s important for employers across the country to check state labor law guides.
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Should People with Criminal Convictions be able to Work in Health Care? A Bill in Washington’s Legislature Would Relax State Laws
A bill that is being discussed by Washington lawmakers would end the automatic disqualification of people with certain criminal convictions from working with vulnerable populations in health or home care. Sponsors of the bill say the effort could address the shortage of qualified caretakers and encourage people with convictions to take charge of their lives. Specifically, House Bill 1411 would allow people with certain crimes on their record to be eligible to apply for jobs with the Department of Social and Health Services (DSHS) at long-term care facilities or as in-home caretakers. Although the bill has support, some are urging sponsors to add more safeguards to protect the most vulnerable from abuse and neglect.
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Ten Key FCRA Decisions of 2020
In addition to the continued increase in the number of Fair Credit Reporting Act (FCRA) case filings, 2020 also saw several key decisions handed down by federal courts. These relate to diverse issues like matching procedures of credit re- porting agencies (CRAs), Article III standing, the meaning of “maximum possible accuracy” and preemption of state credit reporting laws. Ten key FCRA decisions were made in: Williams v. First Advantage LNS Screening Solutions, Ramirez v. TransUnion LLC, Walker v. Fred Meyer, Inc., Luna v. Hansen & Adkins Auto Transport, Inc., Davis v. C&D Security Management, Inc. et al., Moran v. The
Screening Pros, LLC, et al., Domante v. Dish Networks, LLC, Consumer Data Industry Association v. Frey, Settles v. Trans Union, LLC, and Erickson v. First Advantage Background Services Corp.
DRUG SCREENING
Employers and Legal Marijuana
Although most states have legalized marijuana for medical or recreational purposes (or both), the federal government has yet to follow suite. Employers, however, should be paying attention to the ways these new laws should be reflected in their policy decisions, asking questions like “what are the laws in my state?” “Should I be testing for marijuana?” “Can I fire an employee who tests positive?” “If an applicant tests positive for marijuana, could I still hire that person?” and “Have I addressed marijuana laws in my company’s drug-free workplace policy.?” Although laws may vary and some include guidelines for medical use, marijuana is firmly prohibited for employers regulated by the Department of Transportation (DOT). It is still legal to test for marijuana within the workplace, but,
again, employers should pay attention to state laws and regulations.
New Jersey’s Legalization of Recreational Cannabis Use Includes Critical Employee Protections, But Leaves Many Questions Unanswered
The New Jersey Legislature has passed the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA),
removing marijuana as a Schedule 1 drug and legalizing personal use of cannabis for adults over the age of 21. The state is the first to explicitly protect employees who engage in off-work marijuana use from adverse employment action taken on the basis of that use, and to limit an employer’s ability to act on the basis of a positive marijuana test after employment has started. The existing New Jersey Compassionate Use Medical Marijuana Act (CUMMA) requires employers to engage in an interactive process to reasonably accommodate a qualifying employee’s use of medical cannabis off-site and off-hours. Under the new legislation, employers can no longer take adverse action against an employee solely because an individual has used, or not used, a cannabis product off duty, regardless of whether such use is medically prescribed or recreational. Although regulations and guidance are still anticipated, employers are advised to update their drug use and testing policies to account for the new protections.
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The Cannabis Conundrum: A Warning for Employers
Medical marijuana was legalized for use in New York in 2014 and Governor Cuomo has indicated that recreational legalization could soon follow. Although employees there are prohibited from testing job applicants for marijuana, they can test current employees. But what happens if an employee tests positive at work while having a prescription for medical marijuana? The ruling in Gordon v. Consolidated Edison, Inc., determined that a financial analyst who was terminated by Con Edison after a positive drug test could sue the utility company for disability discrimination. In the situation, the plaintiff was advised by a doctor that she would be a suitable candidate for medical marijuana to treat her irritable bowel disease. She made an appointment with the New York State Department of Health’s Medical Marijuana Program to be certified after claiming marijuana instantly relieved her symptoms. She was tested at work before becoming certified and, because of a positive test, was found to have violated the company’s drug policy and was terminated from her position. Employers in similar situations should consider the nature of the employee’s job and whether it is a safety sensitive occupation, whether there have been attendance issues or errors in the employee’s job and whether the cannabis has impacted work performance.
BIOMETRIC ISSUES
New York Proposes Biometric Privacy Act with Private Right of Action
Assembly Bill 27 – or Biometric Privacy Act – proposed by a bipartisan group of New York State lawmakers, would impose significant compliance requirements for companies handling biometric data. New York would become only the second state with a private right of action that includes statutory damages against entities that improperly use or retain biometric data. Specifically, the BPA will regulate entities’ use and retention of “biometric identifiers” and “biometric information.” Certain requirements would apply to private entities that engage in the collection of biometric identifiers and biometric information and also would prohibit private entities from selling, leasing, trading or otherwise profiting from an individual’s biometric data. In addition, it would put strict restrictions on private entities’ ability to disclose such information without the individual’s consent. The regulation provides a private right of action for any individual “aggrieved” by a violation of the law, and would allow such individual to recover damages of up to $1,000 for each negligent violation and $5,000 for each intentional or reckless violation, as well as attorneys’ fees and costs.
New York Proposes Biometric Privacy Act with Private Right of Action
Assembly Bill 27 – or Biometric Privacy Act – proposed by a bipartisan group of New York State lawmakers, would impose significant compliance requirements for companies handling biometric data. New York would become only the second state with a private right of action that includes statutory damages against entities that improperly use or retain biometric data. Specifically, the BPA will regulate entities’ use and retention of “biometric identifiers” and “biometric information.” Certain requirements would apply to private entities that engage in the collection of biometric identifiers and biometric information and also would prohibit private entities from selling, leasing, trading or otherwise profiting from an individual’s biometric data. In addition, it would put strict restrictions on private entities’ ability to disclose such information without the individual’s consent. The regulation pro- vides a private right of action for any individual “aggrieved” by a violation of the law, and would allow such individual to recover damages of up to $1,000 for each negligent violation and $5,000 for each intentional or reckless violation, as well as attorneys’ fees and costs.
Digital ID Verification Increasingly Targeted by AI Deep-fakes, Advisory Warns
According to Gemini Advisory, digital ID verification is attracting new threats in the form of advanced deep-fake software found on the dark web. While this is nothing new, the demand is on the rise as banks and other financial services are relying more and more on digital ID verification through selfies and videos to secure their automated services. The business has been tracking deep-fake services and have determined that detection software solutions are lagging behind these threats, only performing at 65.18 percent precision.
DATA PROTECTION & PRIVACY
Virginia Set to Become Second State to Pass a Comprehensive Privacy Law
The Virginia Senate passed the Virginia Consumer Data Protection Act (CDPA) on February 3, which borrows from the California Consumer Privacy Act (CCPA) and the General Data Protection Regulation (GDPR) but differs in key respects. The key provisions of the CDPA involve applicability, exemptions, controller/ processer distinction, broad definition of personal data, inclusion of sensitive data category, individual rights, data protection assessments and enforcement.
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Wait a Minute – I Thought Employee Data was Deferred from the CPPA Until 2023. What Exactly Are Employers Supposed to Do Now?
Even though the California Public Records Act (CPRA) deferred a majority of the California Consumer Privacy Act’s (CCPA) employee-related substantive requirements until January 2023, employers are still required to provide employees with a notice of collection “at or before the point at which” the collection of information occurs. The following information must be collected: a list of the categories of per- sonal information that will be collected, the business or commercial purpose for which the information is being collected, information on how to opt out of the sale of personal information and information on how to find the company’s complete privacy notice. After Jan. 1, 2023, CPRA also requires the collection of whether that information is “sold or shared” and the “length of time” that the business in- tends to retain each category of personal information.
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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