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 Pugliano
CEO
Lpugliano@nsshire.com

EMPLOYMENT SCREENING

Background Check Disclosures: What’s Extra But Not Extraneous?
The Ninth Circuit issued a decision in March that provides employers with actionable direction for the purposes of drafting and assessing the compliance of their background check disclosures and adverse action processes. Plaintiff Daniel Walker filed a class action against a grocery chain, alleging that he was unable to understand the nature of the background report that the grocery store requested. The District Court dismissed the complaint in June 2018, finding that nothing in the disclosure was extraneous, and that it was clear and conspicuous. The case was sent to the Ninth Circuit on appeal, where the term “extraneous” was assessed. Applying Syed v. M-I, LLC, and Gilberg v. California Check Cashing Stores, the Ninth Circuit held that a brief explanation of what it means to obtain a background check for employment purposes is not extraneous and satisfies the Fair Credit Reporting Act’s (FCRA) standalone disclosure requirement, but that disclosure of related processes is extraneous.
Read more

Taking Into Account Salary History in Setting Pay
The Equal Pay Act (EPA) prohibits pay discrimination on the basis of sex and does not require proof of discriminatory intent. As such, the Ninth Circuit recently held for the second time in Rizo v. Yovino that, under the EPA, prior salary history cannot be used by employers to justify sex-based pay differentials. Although there is a circuit split at the federal level as to whether prior salary can justify sex-based pay gaps under the EPA, companies should be aware of “salary history bans” at the state and local level, including in New York, New York City, California, San Francisco, Colorado, Illinois, Massachusetts, Oregon and Washington. In most of these jurisdictions, an employer’s ability to rely on an applicant’s salary history in reaching a compensation decision is limited. Employers should, instead, consider position-related factors, such as duties and responsibilities of the position, and person-related factors, such as past experience and education levels.
Read more

LEGAL ISSUES

Employee Must Dispute Background Check Finding With Credit Agency, Not Employer
The plaintiff in Walker v. Fred Moyer, Inc., sued his employer under the Fair Credit Reporting Act (FCRA), claiming that the defendant’s FCRA disclosures contained extraneous information and therefore violated the law’s requirement that such disclosures be clear and concise. He also alleged that the defendant violated the FCRA by refusing to discuss the search results with him before his job offer was revoked. On appeal, the Ninth Circuit held that the FCRA notice should be limited to basic information about the search and its purposes, however, the employer may add additional information that is directly related to these required disclosures.
Read more

9th Circuit: Employees Failed to Show Background Check Info Was Confusing
Employees in a putative class action lawsuit against Shamrock Foods alleged that the employer violated the Fair Credit Reporting Act (FCRA) by failing to obtain authorization for their background checks and properly disclose its intent to obtain consumer reports. In addition, the employees allege the information was included in a “lengthy” employment application. The 9th U.S. Circuit Court of Appeals concluded that the employees failed to show they were confused by background information in Ruiz v. Shamrock Foods Co., No. 18-56209 (9th Cir., March 20, 2020).
Read more

Using Artificial Intelligence and Algorithms
Although the use of AI technology to make predictions, recommendations, or decisions has enormous potential to improve welfare and productivity, risks also are presented, such as the potential for unfair or discriminatory outcomes or the perpetuation of existing socioeconomic disparities. Both the Fair Credit Reporting Act (FCRA) and the Equal Credit Opportunity Act (ECOA) address automated decision-making. The Federal Trade Commission (FTC) Act authority can be used to prohibit unfair and deceptive practices to address consumer injury by emphasizing through law enforcement actions, studies and guidance that AI tools be transparent, explainable, fair and sound, while fostering accountability.
Read more

Ninth Circuit Reinforces Prohibition Against “Extraneous” Information in Background Check Disclosures
In March, the Ninth Circuit issued its third opinion on the question of when an employer’s background check disclosure satisfies the so-called “standalone” disclosure requirement in the Fair Credit Reporting Act (FCRA), specifically providing practical guidance for drafting such disclosures. Employers may order background reports for employment purposes, but must first disclose their intention to do so and obtain authorization. The disclosure must be “clear,” “conspicuous,” and presented in a “document” that consists “solely” of the disclosure. The Ninth Circuit’s opinion discussed each paragraph of the employer’s disclosure and ruled that most, but not all, of the text was part of the disclosure rather than impermissible “extraneous” material.
Read more

DRUG SCREENING ISSUES

NJ Supreme Court Recognizes Medical Marijuana Discrimination
The New Jersey Supreme Court ruled that a funeral director may pursue discrimination claims against his former employer. Justin Wild’s anti-discrimination claims against Carriage Funeral Holdings, Inc., stem from his termination following a car-accident-related injury. Wild claims he was terminated because of his use of medical marijuana to manage cancer-related pain. A change to the Compassionate Use Medical Marijuana Act (CUMMA) provides employment protections for medical marijuana users, including prohibiting employers from taking any adverse employment action “based solely on the employee’s status” as a medical marijuana patient. In addition, where an employer does have a drug testing policy, any employee or applicant who tests positive for marijuana must be provided an opportunity to present a legitimate medical explanation for the positive result or to request a retest.
Read more

AB 2355 Aims to Make Medical Cannabis Users A Protected Class in California
Assembly Bill 2355 (AB 2355) was introduced in California, which would make medical marijuana cannabis users a protected class in California. Sixteen states, including Nevada, New York and Pennsylvania, already have similar laws that protect marijuana users against employment discrimination. AB 2355 does not, however:

• Prevent an employer from refusing to hire an individual, or from discharging or reasonably accommodating an employee who is within the medical cannabis protected class.
• Apply where an employer requires all employees and job applicants to be drug and alcohol-free for legitimate safety reasons as required by federal or state laws, and who is required to conduct applicant and ongoing testing of employees by those laws and regulations.
• Diminish an employer’s ability to terminate an employee, refuse an accommodation, suspend an employee, or take any other lawful action against the employee if the employer discovers that the employee is using or is impaired by medical cannabis on the property or premises of the place of employment or during the hours of employment.

Read more

New York City Commission on Human Rights Proposes Rules Addressing Exceptions to Prohibition on Pre-Employment Marijuana Screening
The New York City Commission on Human Rights (the “Commission”) proposed rules in March addressing exceptions recognized under the city’s ordinance generally prohibiting pre-employment testing for marijuana and tetrahydrocannabinols (THC). Effective May 10, 2020, the ban on pre-employment testing for marijuana and THC will identify positions “with the potential to significantly impact the health or safety of employees or members of the public,” as permitted by the law. The proposed rules would permit testing of candidates for positions that require an employee to regularly, or within one week of beginning employment, work on an active construction site; regularly operate heavy machinery; regularly work on power or gas utility lines; operate a motor vehicle on an approximately daily basis; or where impairment would interfere with the employee’s ability to take adequate care in the carrying out of their job duties and would pose an immediate risk of death or serious physical harm to the employee or to other people.
Read more

IMMIGRATION AND eVERIFY

II-9 and E-Verify Compliance Blog: Form I-9 Conundrum: Is Your Business Operating Remotely During COVID-19?
A new “flexible” Form I-9 option, announced by the Department of Homeland Security in early April, enables employers to conduct a remote verification of a new hire’s identity and work authorization documents, followed by an in-person
verification at a later time. The relaxation of rules was a surprise to many businesses and employers with hiring needs are finding themselves trying to make sense of the option. First, if employees are physically present at a work location,
the exception will not be allowed, however for those employers with closed locations, virtual verifications for new hires will be permitted. There are exceptions for new hires or existing employees that are subject to COVID-19 quarantine or
lockdown protocols. Those who fail to comply could be charged with a so-called timeliness violation, which could potentially add up quickly.
Read more

DATA PROTECTION & PRIVACY

Two Years of GDPR: What We Have Learned and What You Need to Know
Marcel Duhamel, a partner in the Vorys, Sater, Seymour and Pease, LLC authored a white paper titled “Two Years of GDPR: What We Have Learned and What You Need to Know.” The white paper provides an in-depth overview of GDPR (General Data Protection Regulation), and it also offers some insights into what has been
learned about the law over the past two years.
The extraterritorial scope of GDPR – including to U.S. businesses with no physical presence within the E.U.
• How a U.S.-based business can determine whether or not GDPR applies to them and, if it does, what compliance entails.
• The many rights of data subjects granted under the GDPR.
• The principles in GDPR that govern the processing of personal data and the obligations on businesses to comply with these principles.
• An overview of the potential damages and penalties.
Download white paper

State Consumer Privacy Law Round Up February 2020
The National Conference of State Legislatures has reported that more than 150 new consumer privacy bills were introduced in 25 states and Puerto Rico in 2019, as well as several federal privacy law proposals. A few of these include the Washington Privacy Act, which is modeled after the General Data Protection Regulation (GDPR); New Hampshire’s HB 1680-FN, a copycat of the California Consumer Privacy Act (CCPA); and New Jersey’s draft bill A2188, which would regulate owners/operators of websites and online services in their use of “personally identifiable information.”
Read more

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.

We’d like to hear from you! Please email us at info@nsshire.com or visit our contact form by clicking HERE

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 Pugliano
CEO
Lpugliano@nsshire.com

EMPLOYMENT SCREENING

Salary History Questions Are Now Banned in New York

Since early January, New York employers have been prohibited from inquiring
about an applicant’s prior salary. Applying to all public and private employers within
New York state and covering applicants and employees who have taken an
affirmative step to seek full-time, part-time, or temporary/seasonal employment
with an employer, the law does not apply to independent contractors, freelance
workers, or other contract workers. Although employers are prohibited from
requesting the salary history of an applicant, an applicant may choose to
voluntarily disclose his or her prior salary.
Read more

What is Past is Prologue: The Ninth Circuit Again Rules That Prior Salary
Cannot Justify Pay Differences

In February, the Ninth Circuit issued a decision in Rizo v. Yovino, holding that the
prior salary cannot be used as a “factor other than sex” to justify pay differences
under the federal Equal Pay Act. With the Feb. 27 ruling, the Ninth Circuit joined
the Tenth and Eleventh circuits in holding that the Equal Pay Act precludes
employers from relying solely on prior salary to justify pay differences. Brought by
Aileen Rizo, a math consultant for the Fresno County public schools, internal
complaints were brought regarding the disparity between her compensation and
that of her male counterparts and the suit was filed raising allegations under the
federal Equal Pay Act, Title VII, and the California Fair Employment and Housing
Act.
Read more

Maryland’s Ban the Box Law Requires Swift Action for Employers to Comply

The Maryland General Assembly voted to override Governor Larry Hogan’s veto of
the Criminal Record Screening Practices Act. Employers must be prepared to
comply with the law when it takes effect on February 29, 2020. The act establishes
a statewide ban the box law prohibiting certain employers in Maryland from
requiring a job applicant to disclose information related to their criminal record, with
limited exception, prior to an in-person interview. The act does not prohibit an
employer from running background checks or public record searches on applicants
prior to in-person interviews, but it does permit employers to require an applicant to
disclose any criminal record during the first in-person interview.
Read more

LEGAL ISSUES

Walgreens Will Pay $7.5 Million to Settle Unlicensed-Pharmacist Claims

Walgreens was sued by several businesses that claim Kim Thien, an employee at the pharmacy, dealt with more than 745,000 prescriptions, with thousands for oxycodone, fentanyl, morphine and codeine, from 2006 to 2017. Thien was not licensed by the state pharmacy board as required by regulation. In addition to a $7.5 million settlement, Walgreens also agreed to institute a license-verification program and conduct annual audits, among other measures.
Read more

9th Circuit Holds All Members of Certified Class Must Have Article III Standing
to Recover Monetary Damages

The 9th Circuit recently held that individual class members must satisfy Article III’s
standing requirements in order to recover individual monetary damages. Class members who are a part of Ramirez v. TransUnion LLC who experienced no injury-in-fact traceable to the alleged statutory violation or challenged conduct must be excluded from any class damages award. The underlying litigation arises from a credit report by defendant TransUnion that identified plaintiff Ramirez’s name as matching two names on the U.S. Department of Treasury’s Office of Foreign Asset Control (OFAC) Database. Ramirez filed the putative class action claiming that Transunion’s OFAC alert practices violated various provisions of the Fair Credit Reporting Act (FCRA).
Read more

Court: Wisconsin Must Expunge Criminal Records from Database

Centering around the case of Demonta Antonio Hall of Milwaukee, the Wisconsin
Department of Justice must expunge arrest records of people who aren’t charged from its criminal database. Hall was arrested in 2015 for possession of an electronic weapon, but he was not charged by prosecutors. At the time, he had an outstanding warrant for a traffic citation, which he paid. He was arrested again in 2017 for second-degree sexual assault, for which he, again, was not charged. At the time of the second arrest, he had an outstanding warrant for disorderly conduct, for which he was fined. When he asked the Justice Department to expunge the weapon and assault arrests from his file, he was told it was not possible because all arrests and convictions had been fused into one file in its criminal database. Hall sued in 2017, demanding the department expunge the weapon and assault arrests and the County judge agreed. Upon appeal, the 2nd District Court of Appeals sided with Hall, finding that state law plainly says that anyone who is arrested but not charged is entitled to have the record of that case expunged from the database.
Read more

Ninth Circuit Reinforces Prohibition Against “Extraneous” Information in
Background Check Disclosures

In March, the Ninth Circuit issued its third opinion on the question of when an
employer’s background check disclosure satisfies the so-called “standalone”
disclosure requirement in the Fair Credit Reporting Act (FCRA), specifically
providing practical guidance for drafting such disclosures. Employers may order
background reports for employment purposes, but must first disclose their intention
to do so and obtain authorization. The disclosure must be “clear,” “conspicuous,”
and presented in a “document” that consists “solely” of the disclosure. The Ninth
Circuit’s opinion discussed each paragraph of the employer’s disclosure and ruled
that most, but not all, of the text was part of the disclosure rather than
impermissible “extraneous” material.
Read more

DRUG SCREENING ISSUES

The 2019 Honig Act Means New Obligations for New Jersey Employers
Around Cannabis at Work

In July 2019, New Jersey Governor Phil Murphy signed into law the Jake Honig
Compassionate Use Medical Cannabis Act, replacing the existing Compassionate
Use of Medical Marijuana Act (CUMMA). The previous Act contained language that
stated that “Nothing in [CUMMA] shall be construed to require … an employer to
accommodate the medical use of marijuana in the workplace,” but under the new
amendment, “It shall be unlawful to take any adverse employment action against
an employee who is a registered qualifying patient based solely on the employee’s
status as a registrant with the commission.” Employers should be prepared to
create policies that will comply with federal, state and local laws, and respond to a
potential increase in positive drug tests and the resultant challenges to any
employer action taken in response to a positive test result.
Read more

Federal Appeals Court Holds Test for Illegal Drugs is Not an Impermissible
Medical Examination, Even If Test May Reveal Lawful Drug Use

The federal appeals court in Turner v. Phillips 66 Co., Case No. 19-5030 (10th Cir.
Oct. 16, 2019) upheld the termination of an employee who tested positive for
amphetamines on a random drug test even though he claimed the result was due
to over-the-counter drug use. A random drug test was conducted by Phillips 66 Co. on employee Richard Turner and just three days later, he submitted to a post- accident drug test following a workplace accident. The initial random test yielded a positive result, which the defendant claimed was due to his use of Sudafed. He appealed the company’s termination decision and followed a denial with a discrimination charge with the Equal Employment Opportunity Commission (EEOC), alleging disability discrimination in violation of the Americans With Disabilities Act (ADA).
Read more

New Jersey’s Supreme Court Upholds Reinstatement of Medical Cannabis
User’s Claim Under the New Jersey Law Against Discrimination

The New Jersey Supreme Court affirmed the reinstatement of a disability
discrimination lawsuit filed by a medical cannabis cardholder against his former
employer after he was fired for failing a post-accident drug test. Medical marijuana
users in the state have two potential avenues to bring discrimination lawsuits
against employers: the New Jersey Law Against Discrimination (LAD) and the
Compassionate Use Medical Cannabis Act (CUMCA). The plaintiff, Justin Wild, a
cancer patient and medical cannabis cardholder under the Compassionate Use of
Medical Marijuana Act (CUMMA), tested positive for cannabis after being involved
in a car accident while at work. Although he was not found to be impaired at the
time by an emergency room doctor, his employment was terminated based upon
its policy against drugs in the workplace. He sued, claiming discrimination under
the LAD.
Read more

New Jersey Employers Must Accommodate Authorized Use of Medical
Marijuana Outside of Workplace

The plaintiff in Wild v. Carriage Funeral Holdings, Inc., a cancer patient and lawful
user of medical marijuana, was involved in a motor vehicle accident while at work.
Although he told a hospital physician that he possessed a license to use medical
marijuana, the physician determined that a drug test was not necessary because it
was clear he wasn’t under the influence of marijuana at that time. The employee’s
employment was terminated following a required drug test to return to work. The
plaintiff filed a suit, alleging disability discrimination and failure to accommodate
under the New Jersey Law Against Discrimination (LAD). The New Jersey
Supreme Court concluded that the plaintiff stated a LAD claim that was sufficient to
survive the employer’s motion to dismiss.
Read more

IMMIGRATION & eVERIFY

I-9 “In-Person” Requirement Relaxed During Pandemic

Effective through May 19, 2020, the Department of Homeland Security has relaxed
the “in-person” review requirements associated with the Form I-9 process for
certain employers on a remote working schedule. The change is the result of the
2020 coronavirus pandemic. All other Form I-9 process rules remain in effect.
While Form I-9 in-person inspection rules are currently relaxed for any U.S.
employer who has converted to a total remote working schedule, DHS has stated
that “if there are employees physically present at a work location, no exceptions
are being implemented at this time for in-person verification of identity and
employment eligibility documentation for Form I-9.” Remote employers should be asked to complete Section 1 of Form I-9 and choose identity and work- authorization documents from List A/B/C.
Read more

E-Verify Extends Timeframe for Taking Action to Resolve Tentative
Nonconfirmations

Due to Social Security Administration (SSA) office closures to the public, the
federal E-Verify system is extending the timeframe to take action to resolve Social
Security Administration Tentative Nonconfirmations (TNC). Also extended is the
timeframe to take action to resolve U.S. Department of Homeland Security TNCs in
limited circumstances when an employee cannot resolve a TNC due to public or
private office closures. Employers must notify employees about their TNC result as
soon as possible and still are required to create cases for their new hires within
three business days from the date of hire.
Read more

U.S. DOT Issues Warning Regarding Use of CBD Products By DOT-Regulated
Employees

The U.S. Department of Transportation (DOT) Office of Drug and Alcohol Policy
Compliance (ODAPC) published a notice in February concerning the use of hemp
and cannabidiol (CBD) products by safety-sensitive employees regulated by DOT’s
agencies. ODAPC stated that any product, including CBD products, with a
concentration of more than 0.3% THC remains classified as marijuana, a Schedule
I drug under the Controlled Substances Act. All safety-sensitive employees should
understand that DOT requires testing for marijuana and not CBD, and that the
labeling of many CBD products may be misleading because the products could
contain higher levels of THC than what the product label states. Furthermore,
DOT’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of
Schedule I drugs for any reason.
Read more

DATA PROTECTION & PRIVACY

Working from Home? Here are 12 Steps to Reduce Data Privacy and Security
Risk

Risks, including pandemic-related phishing emails, increased pressure on network
architecture and user oversight, all are on the rise with the increase in businesses
instituting widespread remote work policies and procedures. In order to mitigate
the data privacy and security risks associated with remote work, 12 measures can
be taken by employers when responding to COVID-19. These include: multi-factor
authentication (MFA); sound transfer procedures; maintaining confidentiality;
working from home, rather than a café; knowing who to call regarding security
incidents and technical issues; saving data on a company-approved network and
cloud storage locations; understanding the limitations of existing insurance
policies; keeping in constant contact with employees; staying aware of phishing
attacks, minimizing the printing of confidential information; and using appropriate
encryption.
Read more

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.

We’d like to hear from you! Please email us at info@nsshire.com or visit our contact form by clicking HERE

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

Criminal Record Screening Policies Continue to Raise Important Multi-Jurisdictional Compliance Issues

In a recent case that resulted in a multi-million dollar settlement by a leading retailer, the employer settled a class action lawsuit for a significant cash payout, including $165,000 in attorney’s fees and other programmatic relief. The plaintiffs in the case allege that the employer’s criminal record screening policies violated New York’s statutory protections for ex-offenders, the New York City Fair Chance Act, the federal Fair Credit Reporting Act (FCRA) and New York’s FCRA. In addition to the payout, the employer agreed to hire an expert in the field of industrial and organizational psychology and consider the expert’s recommendations regarding FCRA and New York law compliance.

Read
more

How Much is a FCRA Violation Going to Cost You?

In Esomonu v. Omnicare, Inc., No. 15-cv-02003-HSG, 2018 U.S. Dist. LEXIS 142110 (N.D. Cal. Aug. 21, 2018), the plaintiff alleged that the defendant violated the Fair Credit Reporting Act (FCRA) when it embedded extraneous information in the FCRA disclosures, failed to alert the employee that she could request a summary of her rights and unlawfully obtained credit and background reports of the plaintiff and other employees. A settlement of $1.3 million was reached in favor of the plaintiff, in addition to attorneys’ fees – about $29 per person.

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more

Eighth Circuit Says Criminal Convictions Justified Termination of Bank Employees

The Eighth Circuit of Appeals recently concluded that a bank was justified in terminating employees or rejecting applicants based on criminal convictions involving dishonesty. Several minority employees filed suit under Title VII, alleging disparate impact based on race in Williams v. Wells Fargo Bank, N.A., after they were denied employment following criminal background checks. Due to the requirement that FDIC-insured institutions exclude from employment those who have convictions for dishonesty or breach of trust, the bank was found to have business necessity for conducting and acting upon information uncovered by the screenings.

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more

Evaluating and Challenging Standing in Fair Credit Reporting Act Actions

In Dutta v. State Farm Mutual Automobile Insurance Company, Dutta alleged that
State Farm was in violation of the Fair Credit Reporting Act when it failed to
provide him with notice of his Fair Credit Reporting Act (FCRA) rights and a copy
of his consumer report prior to denying his employment application. The district
court granted State Farm’s motion for summary judgement on the ground that
Dutta failed to establish an injury-in-fact and thus lacked standing. On appeal, the
Ninth Circuit agreed with the ruling. The case highlights the importance of
evaluating and potentially challenging a plaintiff’s standing in a FCRA action.

Read
more

New FCRA Summary for Rights for Background and Credit Checks

Effective Sept. 21, a new form has been issued by the Consumer Financial Protection Bureau’s (CFPB) regarding the Fair Credit Reporting Act (FCRA) model notice. Failure to comply with FCRA requirements, such as those associated with consumer reports or investigative consumer reports, could result in liability. One of the requirements is that employers must provide individuals with a notice of their rights under the FCRA.

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more

South Carolina Law Amended to Allow Expungement of Certain Criminal Records

Effective December 27, 2018, prospective employees in South Carolina will not be required to disclose criminal convictions that have been expunged. Due to a tight labor market, state lawmakers and business groups hope to expunge juvenile offenses, first offenses, and relatively minor drug offenses to help alleviate labor shortage. The new law will allow eligible persons with multiple convictions to select for expungement from those eligible offenses that might be the most challenging in their job hunt. While it does require a person’s record to be clean for at least three to five years, it also provides an employer immunity from civil action for hiring a worker with an expunged criminal record.

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more

McDonald’s Class Action: Employee Background Checks Violate FCRA

A recent class action lawsuit against McDonald’s alleges that the fast food company failed to obtain proper authorization and was in violation of the Fair Credit Reporting Act (FCRA). In addition, the plaintiff claims that he and other job applicants were not properly notified of the consumer report that the company pulled as part of the application process. The plaintiff and others reportedly were “distracted from the disclosure by the presence of additional information in the purported FCRA disclosure.” The lawsuit is seeking damages for alleged violations of the FCRA.

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more

Stricter Regulations for Consumer Reporting Agencies Compiling Information on New York Consumers

Consumer credit reporting agencies (CCRAs) that reported on 1,000 or more New York consumers in any 12-month period between June 1, 2018, and Sept. 1, 2018, were required to register with the Department of Financial Services (DFS) Superintendent on or before Sept. 15. The underlying reasons, according to the DFS, include the failure of CCRAs to safeguard and maintain accurate consumer data and accurately investigate consumer disputes of alleged inaccuracies. Whether a consumer reporting agency qualifies as a CCRA that is required to register depends upon 1. Whether reports only contain criminal or non-credit information; whether the agency regularly engages in the practice of assembling or evaluating and “maintaining” credit information for the purposes of furnishing consumer reports; and whether the CRAs maintain credit account information from furnishers regularly in the ordinary cause of business.

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more

Connecticut Court Holds That Refusing to Hire Medical
Marijuana User Constitutes Employment Discrimination

Plaintiff Katelin Noffsinger was granted summary judgment in a federal court in Connecticut after she was denied employment following a job offer when she tested positive for marijuana. She filed a complaint in state court against the company, Bride Brook, alleging a violation of the Connecticut Palliative Use of Marijuana Act (PUMA)’s anti-discrimination provision. Noffsinger disclosed to the company that she was a registered qualifying patient who has used medical marijuana for several years to treat post-traumatic stress disorder. The company argued that marijuana is illegal under federal law, but the court rejected the argument because the Drug-Free Workplace Act does not require drug testing, nor does it regulate employees who use illegal drugs outside of work.

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more

Five Recent Drug Testing Cases That Didn’t Need to Happen (And Cost Employers Money)

Several recent cases have highlighted the need for employers to take the proper steps to avoid financial liability by simply becoming familiar with rules. In Lingo v. Early County Gin, Inc., the business was found to not have met the statutory requirements entitling it to the rebuttable presumption of intoxication defense after an employee tested positive for marijuana. The urine sample was taken while undergoing surgery after being run over by a vehicle while on the job. In another case, a $45,000 settlement was reached when Happy Jack’s Casino, South Dakota, rescinded a job officer following a positive test for prescription drugs prescribed for pain management. In September 2016, the Equal Employment Opportunity Commission (EEOC) filed a claim against the company for violation of federal law by refusing to hire the applicant based on her disability. The employer agreed to settle.

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more

What Does the NJ Medicinal Marijuana Executive Order Mean to Employers?

In March, New Jersey Governor Phil Murphy issued an Executive Order to expand the state’s Medical Marijuana program. Employers with anti-drug use policies that prohibit the use of medicinal marijuana will need to be free from discrimination based on a medical condition. The state’s law does not require employers to accommodate medicinal marijuana, however, they are encouraged to review employee handbooks and modify policies, refrain from asking current or potential employers if they are certified to use medicinal marijuana, perform thorough documentation and provide training to managers and supervisors for potential changes.

Read more

McCaskill Introduces Bill to Make Voluntary E-Verify System Mandatory

In August, Senator Claire McCaskill introduced the E-Verify System Act of 2018, which would require all employers to use the E-Verify system to ensure that newly hired employees are either United States citizens or foreign nationals authorized to work in the U.S. legally. Under current law, employers are required to examine documents presented by new hires to verify their identity and work authorization, however, according to McCaskill, “the current system is voluntarily and haphazardly enforced,” which “creates more incentive for illegal immigration and allows too many businesses to easily skirt the law.” The Senator has long been pushing to hold employers accountable for hiring undocumented workers and increasing security at the border.

Read more

Employer Cannot Join E-Verify Without Bargaining With Union

In a recent case involving an unfair labor practice charge, the National Labor Relations Board concluded that the obligation of unionized employers to enter into bargaining with the union before making material changes to terms and conditions of employment applied to an employer’s unilateral decision to enroll in the Department of Homeland Security’s E-Verify system. In The Ruprecht Co., an employer enrolled in E-Verify before notifying the union after it received a subpoena from Homeland Security seeking information about the work eligibility of its employees.

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more

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

More Than Half of Employers Have Found Content on Social Media That
Caused Them NOT to Hire a Candidate, According to Recent CareerBuilder
Survey

A recent CareerBuilder survey revealed that 70 percent of employers are using
social networking sites to research job candidates, with 57 percent of them finding
content that caused them not to hire candidates. The IT and manufacturing
industries were in the lead, with 74 percent and 73 percent, respectively, being
more likely to explore social media pages for content before hiring. Employers
have said they are looking for information that supports their qualifications for the
job; a professional online persona; what other people are saying about the
candidate; and a reason not to hire the candidate. The survey also revealed that
that employers continue to monitor employees’ online presence even after they’re
hired.

Read
more

Social Security Administration to Resume Social Security Mismatch Letter
Notification Program

The Social Security Administration (SSA) will restart its mismatch letter notification
program. Formally titled “Employer Correction Requests,” the SSA notifies
employers that the social security number (SSN) and name reported for one or
more employees does not match SSA records. The letters will instruct employers
to register for the Business Services Online (BSO) database, which contains the
Employer Report Status and includes steps on how to correct mismatches.

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Court Dismisses Background Check Lawsuit Against Sandoval, Laxalt

A judge recently dismissed a lawsuit claiming that Nevada Gov. Brian Sandoval
and Attorney General Adam Laxait did not do enough to enforce a law to expand
background checks on gun sales. The Background Act Check, approved by voters
in 2016, was never implemented because Laxait determined that it could not be
enforced as written. Known as Question 1, the law would require background
checks on private-party gun transfers. The FBI, however, said that it would not
conduct the screening because a “state cannot enforce how federal resources are
used.”

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Evaluating and Challenging Standing in Fair Credit Reporting Act Actions

In Dutta v. State Farm Mutual Automobile Insurance Company, Dutta alleged that
State Farm was in violation of the Fair Credit Reporting Act when it failed to
provide him with notice of his Fair Credit Reporting Act (FCRA) rights and a copy
of his consumer report prior to denying his employment application. The district
court granted State Farm’s motion for summary judgement on the ground that
Dutta failed to establish an injury-in-fact and thus lacked standing. On appeal, the
Ninth Circuit agreed with the ruling. The case highlights the importance of
evaluating and potentially challenging a plaintiff’s standing in a FCRA action.

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Playing a Losing Hand: District Court Dismisses FCRA Disclosure Claim
Against Casino in Absence of Concrete Injury

The District Court for the District of Nevada recently found that a plaintiff cannot
bring a “solely of the disclosure” claim in federal court when he or she has suffered
no actual harm separate from the perceived failure to properly format the
disclosure. In Williams v. TLC Casino Enters, the plaintiff alleged that TLC Casino
Enterprises violated the Fair Credit Reporting Act (FCRA) by obtaining a consumer
report on her without providing her with a “stand-alone document of a legal
disclosure.” The business moved to dismiss the complaint for lack of standing,
arguing that the claim amounted to “nothing more than a bare procedural violation
of the FCRA.” The court agreed with TLC Casino Enterprises.

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Spokeo Strikes Again: Why Challenges to Standing Are Key

The Ninth Circuit affirmed in July the district court’s decision granting summary
judgment to State Farm to a putative Fair Credit Reporting Act (FCRA) class action
in Dutta v. State Farm Mutual Automobile Insurance Company. In the case, plaintiff
Bobby S. Dutta alleged State Farm violated section 1681b of the FCRA by failing
to provide him with a copy of his consumer report, notice FCRA rights and an
opportunity to challenge inaccuracies before being denied employment. The
decision highlights the importance of continuing to challenge standing at all stages
of a case.

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More Employee Drug Use Equals More Issues for Employers

Quest Diagnostic’s most recent annual report showed a continued increase in the
positive rate of both legal and illegal drug use among both the general U.S.
Workplace and the federally mandated workforce. In 2016, 116 people died each
day from opioid-related drug overdoses, causing more than 504 billion in economic
costs. Employer PUD recently was ordered to pay a former employee $1.8 million
in economic and emotional damages for violating the Washington Law Against
Discrimination. The employee was legally prescribed medication for chronic
migraines. With drug use on the rise, it is more important now than ever for
employers to ensure compliance with state disability discrimination rules.

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New Jersey Federal Court: Employer Need Not Waive Drug Gest for Medical
Marijuana User

Despite the legalization of medical marijuana in several states, the drug still
remains a Schedule 1 illegal substance. Employees, however, are left wondering
how the new laws affect rights under the Americans with Disabilities Act (ADA). For
instance, New Jersey’s Compassionate Use Medical Marijuana Act (CUMMA)
does not permit the use of medical marijuana in the workplace, as stated by the
federal District Court in a recent case. Even so, employers may want to consider
initiating the interactive process to determine if a reasonable accommodation or
alternative to its drug-free policy exists.

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New Jersey Mandates Drug Testing of Direct Support Staff

Effective in May, applicants and employees working in any New Jersey
Department of Human Services funded, licensed or regulated program serving
adults with developmental disabilities are subject to mandatory drug testing. The
Stephen Komninos’ Law, New Jersey Public Law 2017, Chapter 238, which
applies to “direct care staff members” also includes volunteers. Drug tests will be
conducted for pre-employment, at random, or “for cause” or reasonable suspicion.

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Poppy Seed Bagel to Blame For Tests Positive for Opiates During Labor

While in labor with her daughter, Elizabeth Eden was reported to child services
after opioids were found in her blood. The testing, which is used to “catch mothers
who use illegal drugs,” according to Dr. Judith Rossiter-Pratt, the obstetrics and
gynecology department chief at St. Joseph Medical Center, caused the new
mother to be held in the hospital for five days. She also was required to allow a
caseworker to check her home. The positive results, however, were found to be
due to a poppy seed bagel that was consumed for breakfast that morning.

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A Closer Look at How the Opioid Epidemic is Impacting Employment

According to the Centers for Disease Control and Prevention, 115 Americans die
each day from drug overdose involving an opioid. The crisis affects various
aspects of people’s lives, from their families and communities to their workplaces,
leading to job loss and lower labor force participation. But data suggests that many
people taking opioids are employed, with nearly 85 percent prescribed for working
age people, paid for by private health insurance. A study suggests that the crisis
doesn’t stem from poor economic conditions, but rather can be blamed on a “selfinflicted
perfect storm that arose from a combination of newly availably opioids,
new attitudes about the importance of pain management, loose prescribing
practices and a lack of professional accountability.”

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Form I-9 Immigration and Employment Law Alert: The Time is Now for a
Proactive Audit

With Immigration and Customs Enforcement (ICE) workplace audits on the rise,
especially in California, employers are advised to make the I-9 form a top priority.
Under federal law, all employers in the United States are required to complete this
form to verify the identity and employment eligibility of new hires. Section 1 must
be completed at the time of hire and Section 2 within three business days. These
important documents must be retained for three years after the date of hire. More
than 50 percent, however, are shown to have errors, either being incomplete,
incorrect or outdated. Employers are advised to work with counsel to conduct a
proactive internal audit, ensuring HR representatives are well trained, and ensuring
electronic files are properly stored, among other items.

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Baby It’s Cold Outside: ICE I-9 Audits Increase Over 100 Percent

With Form I-9 inspections by Immigration and Customs Enforcement (ICE)
increasing by more than 100 percent, employers are advised to make appropriate
compliance efforts to avoid monetary fines, branding exposure and other forms of
liability. In July, ICE released information to the press that its Homeland Security
Investigations (HSI) division had completed the second phase of a nationwide
operation, serving 2,738 I-9 Notices of Inspection (NOIs). The first phase saw
2,450 issued earlier this year. Businesses should take these NOIs seriously and
avoid waiving the three-day right to produce the I-9. Communicate carefully with
the agency and remain aware of the time constraints. When the audit has been
completed, it is important to create a post-NOI checklist that includes proactive
plans.

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The Practical Guide to the California Consumer Privacy Protection Act,
Part 1

The California Consumer Privacy Protection Act of 2018 (CCPA), designed to emulate
the European General Data Protection Regulation (GDPR), has U.S. companies
rushing to verify that their practices comply with the statute. Bryan Cave
Leighton Paisner has published a multi-part Practical Guide to the CCPA to help
address any confusion. In it, he shares that the CCPA requires that a business
informs Californians about whom it has collected information about the organization’s
privacy practices. Prior to the enactment of the CCPA, there were several
laws within the United States that required companies to publish a privacy notice,
but the CCPA applies to a broader group of companies, among other differences.
Employers should review existing privacy notices and verify compliance, identify
instances in which one many be collecting information about Californians and
draft a privacy notice that confirms with both the CCPA and other privacy laws
that may apply.

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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

Asking Applicants About Salary History Now Banned in Massachusetts and Vermont, Connecticut to Follow

Massachusetts and Vermont now will prohibit employers from inquiring into or seeking prospective employees’ salary
history. Connecticut soon will follow, while Maine, New Hampshire and Rhode Island are considering similar
measures. In addition to the prohibition, the two states will not allow employers from requiring that an applicant’s
current or prior salary history meet certain criteria, and Vermont law also prohibits employers from determining whether
to interview an applicant based on the applicant’s current or past compensation. To comply, employers should review
and revise hiring documents, ensure that all applicants know that they are not required to disclose salary history, train
personnel involved in the hiring process on restrictions imposed by the new laws, and take a fresh look at current
compensation practices.

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Hawaii Prohibits Employers from Asking Job Applicants About Salary
History

Hawaii Governor David Y. Ige recently signed Senate Bill 2351 into law, which will
prohibit prospective employees in the state from requesting or considering the
wage or salary history of job applicants as part of an employment application
process or compensation offer. The law will take effect Jan. 1, 2019.

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NJ Appellate Court: You Have the Right to Obtain Public Records Even If You Live Out of State

Under New Jersey’s Open Public Records Act (OPRA), the term “citizens” applies to the general public and now, thanks to a decision of the New Jersey Appellate Division, individuals are not limited to the state. The ruling comes after an out-of-state citizen filed an OPRA lawsuit in Burlington County after the Atlantic County Municipal Joint Insurance Fund refused to provide requested records about legal bills. The judge in the case concluded that the right to request public records under OPRA is not limited to NJ citizens.

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North Carolina Legislature Expands Opportunities for Employment of Persons With Criminal Records Shields Employers From Negligence Claims

House Bill (HB) 774 recently was signed by North Carolina Governor Ray Cooper and aims to broaden the situations in which individuals convicted of certain crimes may petition for a “certificate of relief.” The bill, which was unanimously passed, will help reduce the risks employers may face when hiring persons with criminal convictions. Under the new legislation, certificates are made available to individuals who have been convicted of “no more than three Class H or I felonies and any misdemeanors.” The law also insulates employers from liability from most employment-related negligence claims when hiring or retaining a person with a certificate of relief, but only if the employer “relied on” the certificate of relief in hiring or retaining the person.

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Does the New California Privacy Law Apply to Your Business?

According to an analysis by the International Association of Privacy Professionals, almost half a million United States companies will be impacted by the passage of the California Consumer Privacy Act. The law, which applies to businesses, such as sole proprietorships, partnerships, limited liability companies, corporations, associations or other legal entities that collect a consumer’s personal information, does not include natural persons. Those businesses that have taken steps to comply with the General Data Protection Regulation (GDPR) will likely find that they already have processes and policies in place that permit them to comply. It is important for companies doing business in the state of California to explore the thresholds and definitions set forth by the law.

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FCRA Class Action Dismissed by Missouri Court of Appeals for Lack of Standing

The plaintiff in a class action filed in Cole County Circuit Court against Kelly Services claimed that the company violated the Fair Credit Reporting Act when it included more information in its disclosure form than was allowed and by not providing him with either the report or a summary of his rights. Although it was dismissed in 2016 by the federal court under the U.S. Supreme Court’s Spokeo v. Robins decision, it was remanded back to state court, where a three-judge panel of the Missouri Court of Appeals upheld the lower court’s ruling that the plaintiff lacked standing to pursue his claim since he could not prove concrete and actual injury.

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Cannabis Opioid Crisis Disproportionately Affects Construction Industry: Three Policies to Minimize Associated Risks

Declared by the White House in October 2017 as a “public health crisis,” the opioid addiction epidemic has been found to disproportionately affect the construction industry more than any other sector. Employers in the construction industry should consider implementing drug screenings during the hiring process; “random” drug testing during employment; and written disciplinary policies and procedures for disciplining employees that test positive for any opioids or illegal drugs.

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The Far-Reaching, Positive Impact of Workplace Drug Testing

Employment drug testing has been shown to not only promote a safer, more productive workplace, but to help decrease employee turnover and absenteeism, reduce employer risk and lower workers’ compensation incidence rates. It has been found that employees are more likely to undergo treatment when it is fostered by an employer and those in recovery go on to become better workers. According to “Drug Abuse Costs Employers $81 Billion Per Year,” drug abuse leads to lost productivity due to absenteeism, withdrawal, preoccupation with obtaining and using substances while at work, illegal activities at work, and psychological or stress-related effects. Those companies who choose to drug test their employees help protect their company from liability and potentially lower workers’ comp costs and premiums.

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What Employers Should Know About Recreational Marijuana in Massachusetts

In July, Massachusetts became one of nine states to legalize recreational marijuana. The state, however, has no statutory protection for employees’ lawful off-duty conduct, such as smoking, so employers may terminate an employee for off-duty and/or off-site recreational marijuana use. Courts would be unlikely to protect employees who test positive for recreational marijuana use. It does, after all, remain illegal under federal law. To minimize the risk of a viable legal claim resulting from an employee’s termination, there are several things employers can do: 1. Enforce zero-tolerance policies; loosen drug-testing policies as recreational use becomes more prevalent; eliminate standardized testing policies; and update employee handbooks.

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What Vermont’s Legalization of Recreational Marijuana Means for Employers

Vermont’s recreational marijuana law that went into effect in July has lifted penalties for individuals possessing limited amounts of marijuana. The new law doesn’t require employers to tolerate marijuana possession or use in the workplace. The Guide to Vermont’s Laws on Marijuana in the Workplace, released by the Vermont Office of the Attorney General, provides employers an overview of the changes regarding marijuana laws and summarizes existing employment laws relating to drug testing in the workplace. In it, readers can learn about the recreational marijuana law, medical marijuana law, the state’s Fair Employment Practices Act (VFEPA), and the restrictive drug testing law.

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Latest ICE I-9 Audits on the Rise: Act Today to Prevent Issues Tomorrow

Immigration and Customs Enforcement (ICE) has increased worksite enforcement actions by more than 50 percent, including 3,510 worksite investigations, 2,281 I-9 audits and 594 criminal and 610 administrative worksite-related arrests. ICE views its actions as fulfilling its obligations under the Administration’s “By American, Hire American” (BAHA) Executive Order. California has seen the most ICE/Homeland Security Investigation (HSI) action, with 122 Notices of Inspection (NOIs) issues in Los Angeles alone and another 77 served throughout Northern California. ICE has stated that it plans a summer swell, but employers can prepare by conducting internal assessments; reviewing and establishing policies and procedures; being proactive; training; and preparing for a government visit.

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ICE Delivers More Than 5,200 I-9 Audit Notices to Businesses Across the US in 2-Phase Nationwide Operation

U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) recently announced the results of a two-phase nationwide operation in which I-9 audit notices were served to more than 5,200 businesses around the country since the start of the year. During the first phase from late January to March 30, HSI served 2,540 Notice of Inspections (NOIs) and made 61 arrests, while in mid-July, HSI served 2,738 NOIs and made 32 arrests. The worksite enforcement strategy is aimed at criminal prosecution of employers who knowingly break the law, as well as the use of I-9 audits and civil fines to encourage compliance with the law. Failure to follow the law can result in criminal and civil penalties, such as in Fiscal Year 2017, when businesses were ordered to pay $97.6 million in judicial forfeitures, fines and restitution, and $7.8 million in civil fees.

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