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
New Jersey Acting Attorney General and Department of Labor Commissioner Announce Agreements with 15 Employers in “Ban the Box” Enforcement Sweep
Fifteen companies in Trenton, N.J., have agreed to stop including language about applicants’ criminal history in their job advertisements and/or make other changes to their hiring practices. The state’s Opportunity to Compete Act reduces obstacles to employment for people with criminal records by barring covered employers from making inquiries regarding a candidate’s criminal history during the initial employment application process and prohibiting them from stating in job advertisements that candidates will not be considered if they have criminal records. The move is part of the largest-ever enforcement sweep under the Act.
‘Unprecedented’ Violent Crime Spike Reported for 2020
Research released by the National Commission on COVID-19 and Criminal Justice (CCJ) and Arnold Ventures shows that violent crime and murder rates in major American cities continued to rise through most of last year. Gun and other aggravated assault cases rose, while property and drug crimes fell. In the study, monthly crime rates published by police departments were examined for violent, property and drug offenses in 34 cities, looking at a period between January 2017 and December 2020. Homicide rates rose by as much as 32.5 percent compared to the same period from 2019. Researchers identified a connection with the COVID -19 pandemic and racial injustice movements as stressors.
Connecticut Employers Must Be Prepared to Disclose Wage Ranges for Vacant Positions Starting October 1
Connecticut’s new law, “An Act Concerning the Disclosure of Salary Range for a Vacant Position,” effective Oct. 1, 2021, aims to require employers to disclose wage ranges for vacant positions to applicants and employees. The law expands the prohibition of sex-based pay discrimination from “equal” work to “comparable” work. The provisions apply to employees who work in a Connecticut office, work from home in Connecticut, or live in Connecticut and report to an office outside of the state.
National Defense Authorization Act amends FCRA to restrict reporting of ad- verse information on servicemembers
The National Defense Authorization Act as passed by the House and now headed to the Senate includes amendments to the Fair Credit Reporting Act dealing with the reporting of adverse information on servicemembers by consumer reporting agencies.
The amendments include the following prohibition and requirements:
A CRA is prohibited from reporting “any item of adverse information about a uniformed consumer, if the action or inaction that gave rise to the item occurred while the consumer was a deployed uniformed consumer.”
If an item of adverse information is included in a consumer’s file and the consumer provides the CRA with “appropriate proof, the CRA must “promptly delete the item from the file and notify the consumer and the furnisher of the information of the deletion.”
The amendments are accompanied by a statement that anyone using a consumer report that contains an item of adverse information arising from an action or inaction that occurred while the consumer was a uniformed consumer should “take such fact into account when evaluating the creditworthiness of the consumer.”
District Court’s FCRA Decision Offers Guidance for Employers on “Clear and Conspicuous” Disclosures and Willfulness
The Ninth Circuit Court of Appeals partially reversed the decision of the District Court for the District of Oregon when it dismissed a Fair Credit Reporting Act (FCRA) suit filed against Fred Meyer, Inc. The court held that Fred Meyer had failed to comply with the FCRA’s “standalone” requirement by providing, in good faith, an extraneous explanation of the applicant’s rights in its background check disclosure. On remand, the District Court granted partial summary judgment to Fred Meyer, holding that 1. Fred Meyer’s disclosure notice was “clear and conspicuous” as required under the FCRA, and 2. Fred Meyer’s failure to comply with the FCRA’s “standalone” requirement was not willful.
Colorado Supreme Court Ruling is a Victory for Consumers
It was a victory for consumers in Colorado who recently received assurance that employers cannot escape liability for failing to screen who they hire. The Colorado Supreme Court ruled in Brown v. Long Romero that a trial court erred in dismissing negligent hiring claims against an employer for failing to use reasonable care in hiring an employee who also was sued for the wrongful death of a child. The state’s General Assembly also acted on the issue for future cases that arise against employers.
Orange County to ‘Ban the Box’ Asking Job Applicants About Past Criminal Convictions
At Orange County’s second annual “Desmond Meade Day,” it was announced that people applying for a job with the Orange County government will no longer have to disclose prior criminal convictions at the beginning of the application process. Officials and advocates hope the move will improve access to employment for those with a criminal record. Human Resources Director Ricardo Daye said the county is in the process of revamping its application process to eliminate the question of past convictions for most jobs and hopes to have the new policy implemented this month. The question will not, however, be removed from certain public safety positions. He sees the move as a way to expand the pool of applicants.
DRUG SCREENING ISSUES
New York State Department of Labor Issues Guidance Concerning Employee Cannabis Use
The New York State Department of Labor (NYSDOL) has published guidance to employers concerning “Adult Use Cannabis and the Workplace.” The guidance covers ground already established by New York’s Marijuana Regulation and Taxation Act (MRTA), reinforcing that an employer may take appropriate action against an employee who “manifests specific articulable symptoms” of being under the influence of cannabis while on the job. The guidance makes clear that reporting to work with a “noticeable odor of cannabis,” together with other indicia of cannabis use, are insufficient to warrant corrective action. In addition, the guidance also makes clear that an employer need not allow the actual consumption or possession of cannabis on its premises, or to allow cannabis consumption during break periods or periods when the employee is “expected to be engaged in work.”
Cannabis Legalization and its Impact on the Transportation Industry
The medicinal and recreational legalization of marijuana continues to be on the rise across the United States. The majority of states have enacted laws that permit patients suffering from debilitating illnesses to access and use medical cannabis and 19 states, plus the District of Columbia and Guam, have legalized recreational cannabis consumption. Along with the growing number of individuals using marijuana, these jurisdictions also are aiming to provide protections to those job applicants and employees who lawfully use cannabis out- side of the workplace. Although employees in other industries are beginning to address widespread staffing shortages due to Covid-19 by modifying or discontinuing drug testing for THC metabolites, the option is not available for those in transportation. The Department of Transportation (DOT) requires drug and alcohol testing for all workers for five classes of drugs. The transportation of cannabis is permissible in states where the drug has been legalized, so long as regulatory standards are followed.
E-VERIFY & IMMIGRATION STATUS
E-Verify Releases Final Version of ICA v31 and Sets Deadline of March 31, 2022, for Web Services Providers
A new version (v31) of the E-Verify ICA has been published, including modifications of the duplicate case checking process and additional abilities to close a case during the scan and upload step. In addition, users now are required to download the Further Action Notice before referring a case and a new case delay reason has been added that states – “Awaiting response on case created with incorrect information.” Web services providers must design, test, and implement these changes no later than March 31, 2022, or they may be unable to interact with the E-Verify system at all.
DHS Announces New Worksite Enforcement Strategy: What Does It Mean For I-9 and E-Verify Compliance?
The Department of Homeland Security (DHS) provided insight into the odds of an employer being involved in an I-9 related worksite investigation. The recently released memo outlines a new shift in worksite enforcement strategy from the various governmental agencies that oversee I-9 and E-Verify compliance. The memo calls for the immediate end of mass worksite operations. DHS will look to 1. Reduce the demand for illegal employment by delivering more severe consequences to exploitative employers and their agents; 2. Increase the willingness of workers to report violations of law by exploitative employers and cooperate in employment and labor standards investigation; and 3. Broaden and deepen mechanisms for coordination between the Department of Homeland Security and the Department of Labor, the Department of Justice, the Equal Employment Opportunity Com- mission, the National Labor Relations Board, and state labor agencies. It is more important now than ever for employers to ensure they are fostering their own “culture of compliance” in preparation for whatever new policies may be in the future by raising form I-9 awareness, training staff on both I-9 and E-Verify rules and procedures, and systemizing the I-9 and E-Verify process.
DATA PROTECTION & PRIVACY
The State of Consumer Data Privacy Laws in the US (And Why It Matters)
In the United States, there isn’t a singular law that covers the privacy of all types of data. A mix of laws, like HIPAA, FCRA, FERPA, GLBA, ECPA, COPPA and VPPA, all contribute to how private data is handled. It is because of this that companies are free to do what they want with data, using, sharing or selling information that is collected. There are currently just three states that have comprehensive data privacy laws, including California’s CCPA and CPRA, Virginia’s VCDPA and Colorado’s ColoPA, but the rights the laws provide only apply to those living in the state. Other states, such as Massachusetts, New York, North Carolina and Pennsylvania, all have serious comprehensive consumer data privacy proposals in committee right now, while other states have varying laws in the early stages. Privacy experts say basic protections should be available in four areas: data collection and sharing rights, opt-in consent, data minimization, and nondiscrimination and no-data-use discrimination.
U.S. House Committee Votes to Create New FTC Privacy Bureau and Appropriate $1 Billion to the Agency
In September, the U.S. House Committee on Energy and Commerce (E&C Committee) voted in favor of a legislative recommendation that would create a new Federal Trade Commission privacy bureau as part of the proposed $3.5 trillion federal budget reconciliation package. The markup of the proposed budget would appropriate $1 billion to the FTC over 10 years to create and operate a bureau to accomplish the Commission’s work related to unfair or deceptive acts or practices relating to privacy, data security, identity theft, data abuses and similar matters.
Data Protection: International Data Transfers
Under the General Data Protection Regulation (GDPR), data controllers and data processors are only permitted to transfer personal data outside the EEA in accordance with one of the safeguards set down in Chapter V of the GDPR. The following guidance highlights New Standard Contractual Clauses (New SCCs) that went into effect on June 27, 2021, as under EU data protection law to date, standard contractual clauses approved by the European Commission (SCCs) have been heavily relied upon as an appropriate safeguard to transfer personal data outside of the EEA.