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
FCRA Lawsuits Leads The Way: Webrecon Stats For Dec 2021 & Year In Review FLEADS THE
In December, FCRA led the way with a 12.8% increase over November, while TCPA (-6.7%) and FDCPA (-3%) were both down. The pattern holds for full year numbers as well, with FCRA (+3.5%) up and TCPA (-48.3%) & FDCPA (-4.4%) both down for the full year of 2021.
In other news, putative class actions represented 2.6% of FCRA lawsuits filed in November. About 39%(!) of all plaintiffs who filed suit last month had filed at least once before.
Year to Date:
Dec 01, 2021 Dec 31, 2021
Nov 01, 2021 Nov 30, 2021
Dec 01, 2020 Dec 31, 2020
Jan 01, 2021 Dec 31, 2021
NYC Joins Other Jurisdictions in Requiring Pay Transparency for Job Applicants
New York City soon will require certain employers to disclose salary ranges in connection with advertising positions and considering applicants for employment. The new law amends the New York City Human Rights Law (NYCHRL) to make it unlawful for an employer to advertise a job, promotion, or transfer without including the minimum and maximum salary for the position in the posting. The law applies to any employer with four or more employees located in New York City, including independent contractors.
DRUG SCREENING ISSUES
Overdoses are Increasing at a Troubling Rate
Drug overdoses are taking the lives of more than 100,000 Americans each year and it is due to a combination of the opioid surge and insufficient access to treatment and other programs. Unfortunately, the United States has never had a treatment system in place that could help mitigate the damage from increasing supplies of painkillers, heroin, and fentanyl. Inaccessible treatments are a huge barrier, with families often spending thousands of dollars for treatment that is not covered by insurance. President Biden introduced a plan that would total $125 billion over 10 years, but the plan hasn’t been taken up by lawmakers and there hasn’t been much push from the White House, either. Inaction also comes with a high cost, though, with overdose deaths costing the economy $1 trillion a year in health expenses, reduced productivity and other losses.
Philadelphia and Montana Join List of Jurisdictions That Provide Protections for Recreational Marijuana Use
Philadelphia and Montana are two of the latest jurisdictions to not only protect medical use of marijuana, but recreational use, as well. In Philadelphia, employers are prohibited from requiring prospective employees to submit to testing for the presence of marijuana as a condition of employment. Montana’s lawful off-duty conduct statute has been amended to include marijuana as a lawful product. In other words, employers cannot deny job applicants or discriminate against current employees because of their legal use of marijuana during non-working hours.
Supreme Court of New Hampshire Weighs in on Reasonable Accommodations for Medical Marijuana Users
The Supreme Court of New Hampshire has reversed a trial court decision that dismissed a former employee’s complaint alleging his employer failed to consider whether it could reasonably accommodate his use of marijuana for medicinal purposes. The former employee alleged that he suffered from Post-Traumatic Stress Disorder (PTSD) and that his physician recommended he use marijuana to treat his condition. Although he had no intention of using or possessing during work hours or on the company’s premises, he was terminated. The Supreme Court agreed with the former employee’s discrimination claim, ruling that the New Hampshire disability and accommodation statute does not contain any language categorically excluding the use of medical marijuana as an accommodation.
Weed in the Workplace – Marijuana Roundup
With the changing medical and recreational marijuana laws, it is important for employers to review current policies and prepare to make updates. Medical marijuana laws have been signed in Alabama and Puerto Rico, while recreational regulations have been introduced in Connecticut, New Mexico, and Philadelphia. Some of the laws provide greater protections to employers with drug-free and/or zero-tolerance policies, but others take a more employee-friendly approach.
Pre-Employment Cannabis Testing: Is It Still Worth It?
States across the country are enacting cannabis laws that offer protections for employees using marijuana for medical and recreational purposes. In New York City, employers are prohibited from requiring employment candidates to submit to testing for THC and employers in Philadelphia now are prohibited from requiring job applicants to submit to cannabis testing. Those employers who still include cannabis testing in their pre-employment process could face lawsuits and even a reduction in the employee pool since one employment agency in Illinois said 40 percent of recent applicants had failed drug tests for cannabis use.
Ninth Circuit Closes the Final Chapter in the Moran v. Screening Pros Saga
The 9th Circuit has ruled that Screening Pros did not negligently or willfully violate the FCRA by providing a report that contained non-conviction records more than seven years after the date of the charge. The lawsuit, filed in 2011, alleged that Screening Pros improperly included a non-conviction record that predated the report by more than 7 years. The company, however, argued that the record was properly includable because it was less than 7 years after the charge was dismissed.
New Anti-Discrimination Laws Include Hairstyle, Conviction Record and Cannabis Use
Anti-discrimination laws are popping up all across the country, including the Oregon Crown Act, which adds two definitions to the state statute, defining “protective hairstyle” and “race.” The state joins New York, New Jersey, Virginia, Colorado, Washington, Maryland, Delaware, Connecticut, New Mexico and Nebraska in preventing race-based hair discrimination. In California, a new law was signed that will require approved schools of nursing and nursing programs to include one hour of implicit bias training as part of the program’s graduation requirement. North Carolina has adopted new anti-discrimination laws at the city and state levels, while Illinois has signed into law the Illinois Human Rights Act, prohibiting employers from considering an applicant and an employee’s criminal conviction record when making employment decisions.
DEPARTMENT OF TRANSPORTATION—FMCSA
How to Manage Driver File Record-keeping Requirements
Federal law requires that Driver Qualification Files (DQFs) are kept on all drivers operating CMVs in interstate commerce and that weigh 10,001 or more pounds, transport hazardous materials or carry 10 or more passengers. The Federal Motor Carrier Safety Administration’s (FMCSA) regulation 391 outlines the minimum qualifications for commercial motor vehicle drivers to help ensure all federally-regulated drivers are qualified to be on the road based on their physical health, professional experience, and motor vehicle record (MVR). Each DQF must include: application for employment, MVR/Annual review of driving record, annual list of violations, road test certificate, medical examination certificate, along with any exemptions/waivers, and a skill performance evaluation certificate application (for drivers with missing or impaired limbs and valid for two years).
New Entry-Level Driver Training Regulation is Now in Effect
The Entry-level Driver Training Requirements have gone into effect, requiring all entry-level drivers to complete a combination of theory and behind-the-wheel training from both private and training school providers that are listed on the new Training Provider Registry. The new training requirement only impacts entry-level drivers who are either obtaining a Class A or Class B CDL for the first time, or obtaining a school bus, passenger or hazardous materials endorsement for the first time. Drivers upgrading from a Class B to a Class A CDL will also need to comply.
DATA PROTECTION & PRIVACY STATUS
Proposed State Privacy Law Update Feb. 14, 2022
Lawmakers voted three bills out of committee in February, including New York’s S6701A, Ohio’s HB 376 and Florida’s HB 9. Several new bills also have been introduced, including in Arizona, Iowa, Rhode Island and Wisconsin. More movement has taken place on Virginia’s data privacy law. In biometric bill news, the Maryland Senate Finance Committee held a hearing on SB 335 and in data broker bill news, HB 4017 has been voted out of committee. Privacy bills similar to the CCPA have been introduced in 28 states/ jurisdictions, while six state are considering BIPA-like biometric information privacy bills.
The Proposed Massachusetts Information Privacy Act and Security Act: Will This Be the Year Massachusetts Finally Updates Its Consumer Privacy Laws?
Massachusetts’ Information Privacy and Security Act (MIPSA) would bring the state to the forefront of state regulation of privacy security. The bill, among other things, would give Massachusetts residents the right to opt out of having their personal information sold and having advertising targeted to them, and would create a right to limit how companies can use and share things like location data, biometric data and racial data. In addition, opt-in consent would be required to sell the personal information of people 16 or younger, and residents would also get the right to access, delete, correct or transport personal information that companies collect and maintain about them.
E-VERIFY & IMMIGRATION STATUS
Employer Verification and H-1B Cap Lottery Season: 2022 New Year Action Items and Tools
Employers using E-Verify and hiring H-1B foreign workers should become familiar with helpful action items and resources into the new year. Those registered for E-Verify should annually download and save their E-Verify data to avoid being dependent on the federal government for records. In addition, a simple manipulation of the E-Verify User Report or electronic Form I-9 data, and proper expert analysis of the same, can reduce or eliminate a potential Department of Justice (DOJ) Civil Rights Division Immigrant and Employee Rights Section investigation, settlement and fines. Every employer should provide an employment verification toolbox to those people responsible for the hiring, onboarding and employment verification process.
7th Circuit: Is Each Transmission of Biometric Data a BIPA Violation?
The Seventh Circuit U.S. Court of Appeals has certified a question to the Illinois Supreme Court that asks: “Do section 15(b) and 15(d) claims accrue each time a private entity scans a person’s biometric identifier and each time a private entity transmits such a scan to a third party, respectively, or only upon the first scan and first transmission?” The question was posed by the count in Cothron v. White Castle Systems, Inc., a case was brought against White Castle for sharing finger- prints with a third party vendor in violation of the Illinois Biometric Information Privacy Act (BIPA).