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February Newsletter 2021

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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

EMPLOYMENT SCREENING

Ugly Attack on Congress: Employers Turn to Social Media Background Checks

Employers across the nation are taking a closer look at their employees following the January 6 attack on the Capitol building in Washington, D.C. Chicago-area data company Congensia terminated its CEO after they determined he participated in the riots and Maryland-based direct marketing company Navistar terminated one of their employees after he was photographed and his company ID was clearly displayed as he entered halls of congress. The list goes on. These individuals  have a right to their civil liberties and political preferences, but not when it turns into violence. Employers are finding it more important now than ever to check out prospective candidates and employees’ online activity, but they should be mindful of legislation like the Fair Credit Reporting Act (FCRA) and Equal Employment Opportunity Commission (EEOC). Nothing can replace the traditional background check, but reviewing online activity can help mitigate risk.
Read more

NYC Adds Protections for Employees with Criminal Arrests or Convictions During Employment

The New York City Council has passed amendments to the city’s Fair Chance Act, adding new protections for employees with arrests or convictions during employment. The Fair Chance Act not only affects hiring decisions, but also protects employees convicted during employment. The amendments, effective July 28, 2021, also add new protections for employees with pending arrests or accusations of criminal wrongdoing. Employers must consider the “fair chance factors” to decide whether adverse action may be taken either because there was a direct relationship between the alleged wrongdoing and the job or employment would involve an unreasonable risk to property or people’s safety. Before an employer can take any adverse employment action against a current employee based on a criminal conviction or pending arrest, several factors must be considered.
Read more

LEGAL ISSUES   

Negligent Hiring and Negligent Retention Claims Following a Truck Accident

When it comes to personal injury cases, the accident victim has just one chance to bring their claim – there are no second chances. In this type of law, liability is primarily based on the theory of negligence. A negligent hiring claim argues that an employer was negligent for hiring a truck driver because the employer should have known that the driver posed a risk to the public, while a negligent retention claim argues that the employer learned of the concerning information after the employee was hired. Either way, these claims argue that an employer’s negligence was, at least in part, responsible for an accident victim’s injuries, but in order to be successful, the following facts must be established: the person responsible for the accident victim’s injury was employed by the defendant employ- er; the employee was incompetent; the defendant employer knew of the employee’s incompetence; the employee’s negligence caused the accident victim’s injuries; and the employer’s negligence in hiring (or retaining) the employee was the proximate cause of the accident victim’s injuries.
Read more

Maryland’s Montgomery County Amends, Expands Its ‘Ban-the-Box’ Law

An amendment has been made to Maryland’s Montgomery County ban-the-box legislation that increases restrictions on employers during the hiring process.

Effective February 19, 2021, employers with at least one employee (not limited to full-timers) may not require a job applicant to disclose (or ask a job applicant or others) whether the applicant has an arrest record or conviction record or has been accused of a crime, or conduct a criminal record check on the applicant before a conditional offer of employment, unless the employer is covered by an applicable exemption under the law. In addition, the Amendment provides that at no time can an employer require an applicant to disclose whether the applicant has been arrested, or has an arrest record, for a matter that did not result in a conviction. Other conditions also apply and, under the ordinance, employers (except the County) also are subject to civil penalties for violations of up to $1,000 for each violation.
Read more

DRUG SCREENING         

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 qualiying 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.
Read more

Pennsylvania Medical Marijuana User May Proceed With Disability Discrimination and Retaliation Claims

An employee was terminated after testing positive for marijuana on a return-to-duty drug test. Although she had a medical marijuana card, it was expired at the time she tested positive. The card was renewed and a doctor’s note was provided. A federal court in Pennsylvania overseeing Hudnell v. Jefferson University Hospitals, Inc., held that the medical marijuana user’s claims for disability discrimination and retaliation were sufficiently alleged to survive the employer’s motion to dismiss.

The case highlights the fact that there is a fine line when it comes to reasonable requests and when it comes to medical marijuana use, employers may face disability discrimination and retaliation claims.
Read more

Atlanta Mayor Suspends Pre-Employment Physical Exams, Drug Screenings, For Non-Safety Sensitive Jobs

Atlanta Mayor Keisha Lance Bottoms has issued an Executive Order suspending pre-employment physical examinations and drug screening requirements for prospective City employees in non-safety sensitive positions. The Order, which is designed to address systemic discrimination against communities of color that are disproportionately affected by underlying health conditions, also grants the Commissioner of the Department of Human Resources the authority to administratively establish requirements for pre-employment physical examinations and drug testing for safety sensitive positions. The Commissioner also may designate certain employment classifications, which affect safety and/or security as safety sensitive positions.
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Construction Industry’s Emerging Best Practices for Navigating the Haze of Marijuana Legalization

With marijuana medically legal in 34 states and two territories and for recreational use in 15 states, Washington, D.C., and two territories, the construction industry has been left with plenty of questions about how to maintain a workplace that is safe for all workers. Best practices have emerged in several categories, including employment policies and procedures, safety sensitive position designations, dealing with medical marijuana in the workplace, and drug testing for marijuana in the workplace. A few noteworthy ones? Treat marijuana the same as alcohol or prescription drugs when not working under a federal contract and when in a state that has legalized marijuana; designate safety sensitive positions in writing and make sure that job descriptions reflect how impairment would pose a safety risk; be aware of states who are or will be legalizing medical and recreational use of marijuana in the future; and know that drug tests are not yet a reliable source to establish whether an employee is under the influence of marijuana.
Read more

BIOMETRIC ISSUES

FTC Declares Facial Recognition Surveillance Tech Dangerous, Warns Against Federal Privacy Pre-Emption

The United States Federal Trade Commission (FTC) has issued a proposed settlement with Paravision, which Law Street reports to be its first focused on misuse of the biometric technology, and taking a position against federal privacy laws pre-empting existing state legislation. According to a tweet posted by FTC Commissioner Rohit Chopra, “today’s facial recognition surveillance technologies are discriminatory and dangerous” and his statement about the complaint against Paravision says its use of photos uploaded to the Ever app to train its face biometric algorithms says lobbyists in Washington are attempting “to delete state data protection laws.” The FTC has ordered Paravision to “delete the facial recognition technologies enhanced by any improperly obtained photos,” as well as all photos and videos of Ever users who deactivated their accounts.
Read more

Facial Recognition and Other Biometrics Targeted in Data Privacy Legislation, But What Will Feds Do?

A new bill, The Washington Privacy Act (SB5062), which was sent to the state’s senate, addresses geolocation data and certain biographic characteristics, as well as the use of biometrics for ad targeting. The new bill places enforcement of the privacy measures with the state attorney general and also directs the state priva- cy office and attorney general to consider requiring companies to honor online opt

-out requests submitted through web browsers. A similar ordinance was present- ed by Minneapolis police that would ban the use of facial recognition by Minneap- olis Police, but not outside law enforcement agencies operating in the city and in Utah, a senate committee unanimously approved a bill to regulate law enforce- ment use of facial recognition. There is disagreement between Republicans and Democrats on whether national data privacy legislation should pre-empt state laws, but this may not prevent the passage of new laws with the latter in control of all three legislative branches of the government.
 Read more

FTC Requires App Developer to Obtain Users’ Express Consent for Use of Facial Recognition

Everalbum, developer of the photo storage application Ever, has agreed to a Fed- eral Trade Commission (FTC) settlement that will require the business to 1. Ob- tain users’ express consent before using facial recognition technology on users’ photos and videos, 2. Delete or destroy all facial recognition data collected from users who have not provided consent, 3. Delete and destroy the photos and vide- os of deactivated accounts and 4. Delete models and algorithms that it developed using the photos and videos uploaded by users. Andrew Smith, Director of the FTC Bureau of Consumer Protection, stated that the FTC ensures that “companies keep their promises to customers about how they use and handle biometric data,” making it “a high priority for the FTC.”
Read more

DATA PROTECTION & PRIVACY    

California Privacy Rights Act Passes: Five Tips to Help Companies Prepare for California’s New, New Thing!

Although the California Privacy Rights Act (CPRA) does not repeal the California Consumer Privacy Act (CCPA), it does change and augment it in several ways. The good news is, the CPRA doesn’t take effect until January 1, 2023, and the threshold has been raised to favor small-medium businesses, time has been ex- tended for employee and business-to-business information, and the CPRA still limits its private right of action for claims related to data breaches only. Employers are advised to: reassess the organization’s data sharing and marketing strategies in light of the CPRA’s changed definitions regarding data “sales” and “sharing;” inventory and rationalize “sensitive personal information” collected by the organization to meet new standards; prepare for additional and expanded data subject rights; and prepare to welcome new policymakers and enforcers.
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

The Green Factors and Why They Matter in Hiring Decisions?

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EEOC guidelines that impact employment background checks 

In 1975 an Eighth Circuit Court Case, Green v. Missouri Pacific Railroad, resulted in a finding by the court that it was discriminatory under Title VII for an employer to generally “follow a policy of disqualifying applicants with a conviction, other than minor traffic offenses.” The Court cited three factors known as “The Green Factors” that should be considered before deciding to disqualify an applicant based solely on the existence of a criminal conviction. The court further clarified that these factors should be related to the position in question and be consistent with a business necessity.  

The Green factors are: 
1. The nature and gravity of the offense or conduct  
2. The time that has passed since the offense or conduct and/or completion of the sentence  
3. The nature of the job held or sought  

What this generally means for employers is that having a blanket policy to disqualify an applicant for any conviction other than minor traffic could create a potential Title VII violation. As a reminder, Title VII refers to the Civil Rights Act of 1964. Many components of this act give specific guidance on discrimination practices with respect to hiring practices by employers. 

A key component Title VII is the concept of disparate impact. A blanket policy of denying anyone employment based solely on the existence of an arrest or conviction which may disproportionately impact those protected under Title VII. A blanket policy may also violate the law if not job related and consistent with business necessity, also known as disparate impact liability.  

There is a significant amount of data that supports findings that criminal record exclusions do have a disparate impact on populations based on race and national origin. Other areas that employers may get in trouble is considering arrest records as a reason to exclude applicants from consideration. The fact of an arrest does not establish that criminal conduct has occurred. Therefore, exclusions based on an arrest, if it is not job related, is not in and of itself consistent with a business necessity. However, an employer can decide, based on the conduct underlying the arrest, if the conduct is relevant and would indicate that the applicant is unfit for the position in question. For instance, an applicant with an arrest for a sexual assault would most likely not be a good fit for a daycare worker.  

The EEOC guidance states that employers can meet the job related and consistent with business necessity recommendation as follows: 

1. The employer validates the criminal conduct exclusion for the position in question considering the uniform guidelines on employee selection procedures.  

2.  The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job: the three factors identified by the court in Green V. Missouri Pacific railroad, 549 F2d 1158 (8th Cir. 1977). 

The employer’s policy then, should provide an opportunity for an individualized assessment for those people identified by the screen. The assessment should be used to determine if the policy applied is job related and consistent with the business necessity. There is interpretation of Title VII that does not require individualized assessment in all circumstances. The use of screen that does not include individualized assessments, however, is more likely to violate Title VII. 

It should be noted that compliance with other state and federal laws and or regulations such as the FCRA that conflict with title VII is a defense to a charge of discrimination under Title VII, according to the EEOC.  Considering the information we have provided regarding the FCRA in other articles, it’s recommended that your HR department or legal department reflect on the importance of the green factors when crafting your hiring policy.

The US Equal Employment Opportunity Commission has some specific guidance on their website. https://www.eeoc.gov/laws/guidance/enforcement-guidance-consideration-arrest-and-conviction-records-employment-decisions#VB6 

What does the 7-year limit mean when conducting a background check?

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The seven-year limit is sort of the speed limit that employers use when conducting background checks. Employers and the companies they hire to do background checks are usually bound by a federal law called the FCRA or the (Fair Credit Reporting Act). These third-party companies that conduct the background checks for the employer is called a CRA (Consumer reporting Agency). Most consumers might be familiar with the FCRA when it comes to credit transactions. Creditors can generally only disclose derogatory credit information for a 7-year period. The same is true for employment background checks with several exceptions. 

It may seem academic at this point for Human Resource professionals who are trained to understand and implement background check programs, but not so much for many employers or their staff. A background check for employment purposes is considered a consumer investigative report under the FCRA. The FCRA provides protections for applicants when applying for a position that will require a background check and requires both employers and The CRA to follow specific standards. Some of the standards that are put in place to protect the applicant are as follows: 

  1. Notification – The applicant must be notified, conspicuously, in writing on a separate form that a background check is going to be conducted on them. This is known as the background authorization form. 
  1.  Rights -Applicants must be advised of their rights under the FCRA. This is called the summary of rights notification, which is also on a separate form.  
  1. Adverse Action Notification – The applicant must be notified should the background check uncover derogatory information that might exclude the applicant from further consideration. This is known as an adverse action. An adverse action would then trigger an adverse action notification.  
  1. Dispute – The applicant has a right to dispute the derogatory information which requires the employer and CRA to re-investigate the information. 

A common area of dispute when it comes to adverse actions is CRA reporting criminal convictions or arrests outside of the scope of the FCRA. Some states have their own versions of the FCRA and as such can create a bit of confusion when it comes to which standard to apply. One commonly accepted legal standard to avoid a liability suit is to apply at minimum, the industry standard. You are not required to apple the highest industry standard. 

The federal FCRA allows for employers to report convictions for a 10-year period and arrests for a 7- year period. It is a misconception that only conviction data can be used when denying employment. For instance, if there is a pending charge for a sexual offense that has not yet been adjudicated and the charge is relevant to the position being applied for, such as working with children or the elderly, it would certainly be appropriate to deny them employment based on this potentially harmful charge. There are however other factors to be considered such as EEOC guidelines when considering whether the charge or conviction is relevant to the position being applied for.  

States with a seven-year limit include: 

  • California 
  • Maryland  
  • Massachusetts 
  • Montana Nevada 
  • New York
  • Texas
  • Washington

However, California, along with other states, have salary exemptions. In California, if you are applying for a job with a salary more than $125,000 the employer can go up to 10 years. In Texas and Colorado if the salary is more than $75,000 then an employer can exceed the seven-year limit. So, it is important to know each state’s requirements before engaging an employment screening agency. The CRA that you choose should also know that using non-conviction data in Alaska, California, Indiana, Massachusetts, Michigan, and New York would violate their version of the FCRA and other employment-related laws. 

The real takeaway here is that the courts still maintain the records even if the FCRA forbids them from being utilized in a hiring decision. Many researchers will uncover the information and report it to the CRA. If appropriate controls are not in place, that information could be erroneously reported to the employer and thus create an adverse action situation and a potential FCRA violation which can cost employers thousands of dollars. You may want to consider consulting with an expert in these matters and perhaps conduct an internal self-assessment to see if your company is in compliance with the FCRA.   

Are your employees ready to get back to work?

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Nationwide Screening Services works hard to provide our customers with the best pre-employment, background screening tools available. As we all prepare to have employees return to work, companies are looking for different options to ensure this is being done safely. We would like to introduce you to Custom Healthcare Staffing. 

Ensure a safe environment with Health screeners from Custom

At Custom, they have developed a program to place health care screeners in your office.
Custom will provide:

  • Licensed occupational health professionals
  • Conduct temperature readings
  • Covid exposure questionnaires
  • Onsite presence/consultation to employees entering your place of work
  • Work at an affordable price.
  • 24/7 live service from a staffing professional

If you would like additional details, please reach out to Andrew Norton directly, anorton@customgroupofcompanies.com. Be safe, stay healthy!

If you would like an introduction with CUSTOM STAFFING, please fill out the form below.

6 Reasons Screening Services Are Important

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There are many reasons why pre-employment background checks are so important. In fact, here in the United States they have been the norm for a significant number of years. They are widely considered to be an essential step to take before committing to hire anyone. More often than not, employers assume candidates are telling the truth, or the whole truth. And most of the time applicants are being completely honest.

There are, however, a number of ways they might try hiding the truth from you, or be selective with the information they reveal. A background check, or pre-employment screening, can help protect your company from situations like these. In this article we will outline a few of the moist common ways background checks can be of service to you.

Why Are Background Checks Important for Employers?

Performing a background check is an opportunity to verify the information a candidate has provided you, and a way to make sure they are the right person for the job. Here are six reasons why it’s a good idea to invest the time in them:

  • They can help you make sure your workplace is a safe and healthy environment. Although not all roles or companies may require a criminal background check. Performing one can be crucial to the safety of your company and staff. This is especially important for companies that work with vulnerable people, such as children.
  • You will be able to rest assured you have hired the most qualified person possible for the job. Someone who will be a catalyst for growth in your company, not a hindrance to its development. Confirming an applicant was honest about their education is paramount to hiring someone with the right skill set for the job. Roles that require specialist degrees, in particular, depend on employees with a certain minimum of knowledge, without which the role might not be able to be performed. Past work experience goes along the same lines, in many roles being even more important. It is crucial to make sure an applicant has been honest about where they have worked, and the responsibilities they have had.
  • You will reduce ambiguity in the hiring process and the number of dishonest applicants. Dishonest applicants realizing that it’s becoming increasingly difficult to acquire positions might be dissuaded, or even encouraged to change.

Negligible Hiring and Nurturing an Honest Culture

  • A background check will also minimize exposure to employment liability, should something go wrong. It’s best practice. An employer that does not investigate a potential employee’s background, could be liable for retention or negligible hiring. If the employee is involved in grievous misconduct or illegal activity the consequences can be dire for the employer. The potential ramifications for such a case can be devastating.
  • You spread and perpetuate a culture in which honesty in the application process is encouraged and valued.
  • Instincts aren’t everything. As important as it is to get to know someone face to face, and as good of a judge of character you might think you are, you won’t be getting a complete picture. Screening services can help you get one.

If you would like information on how to start a working relationship with Nationwide Screening Services, please fill out the form below.

May 2020 Newsletter

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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 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.
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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.
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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.
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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.
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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.

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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.
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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

Why Background Checks Are Important For Staffing Agencies

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Background checks are an essential ingredient in maintaining a healthy and productive workplace. It is common for companies to make use of staffing agencies’ services when in need of filling a particular role. Especially so for long term positions, but also for temporary contracts. The importance of background checks is often underestimated, thought to be unimportant. This is a grave mistake to make.

Hiring someone with a violent criminal background, ill intent, or even minor felonies can become a major liability for a company. Dealing internally with an issue like this can be a long and messy process. The best course of action is to prevent a problematic situation like this in the first place. And the best way to achieve this is with a solid background check.

That might be the worst-case scenario, but it’s far from the only reason background checks are crucial to a successful company. Finding the right employee, one you know you can trust, that will take their workload seriously. One that has appropriate experience and qualifications for the position. An exciting and important step for a company to take, at any size and stage. A thorough background check, through the right agency, will help you achieve this goal. Provide you with a filter, to help sift through the sand and find your speck of gold.

How Do I Know I’ve Found the Right Company?

There are a lot of types of background checks, and even more staffing companies. But how do you know which one is right for you?

First off, experience, staff and ample resources are what you want to be looking for. There are many companies out there that claim to be incredibly fast and cheap, without sacrificing accuracy. More often than not, this is a false claim. Like with many things, you get what you pay for with background checks. And trust us when we say this, you do not want to cut corners in this sector. As with some of the issues outlined above, bringing in the wrong person to your company can have catastrophic results. A cheap background check can lead to unpleasant surprises in the future. They can be unreliable, inaccurate and often come paired with hidden fees.

A solid background check performed by experienced staff and a reliable company will lead you to better hires and more numerous hires. If anything you’ll save time, as with a more thorough search you’ll come to your ideal candidate sooner.

With a complete service you’ll be provided with a proper multifaceted investigation. One that covers all bases:

  • Criminal records search
  • Verification of education and related qualifications
  • Employment history
  • Credit history
  • Sex offender status
  • System of Award Management Check
  • OIG

Besides background checks, it’s also quite likely the screening will require further information. Drug tests and healthcare services also make up an important part of the process. Choosing a company that offers a full service won’t only benefit your company but the potential candidate too.

If you would like information on how to start a working relationship with Nationwide Screening Services, please fill out the form below.

Hiring the Right Employee

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Think of a piece of machinery; something inherently simple like an old stone mill. An admirable construction, but with a limited number of moving pieces. If something goes wrong, finding a solution wouldn’t be all that time consuming or taxing. Now compare that to a watch. Masterfully crafted. Filled with multiple layers of cogs, tiny intricately designed pieces, each fulfilling their particular function. All working together in complex unity towards a singular goal; telling the time, accurately.

What happens when our watch stops working? We need to go to a specialist. Repairs are expensive, and they take time.

Once a company has reached a certain size, identifying internal problems can become rather problematic. The larger it becomes the more moving pieces there are, the more complex it is. Like our watch.

Hiring the right employee is crucial to success and growth for any business, be it large or small. Arguably, the importance of a solid team increases exponentially as a business scales up, particularly at the corporate level. The more employees a business has, the more they depend on them to function effectively.

Highlighting one of the many reasons human resources professionals are indispensable. They are the specialists that keep a company running smoothly. That’s not to say they are limited to solving issues, however. They can also help us prevent them.

Issues like the wrong employee in the wrong company, for instance. A significant problem. The best way to prevent this is by employing the right people.

How Do I Know Someone is the Right Fit?

Time is of the essence when a position needs filling. This, however, should not come at the cost of hiring the wrong person. It’s not about taking someone who just needs a job, but someone who is dedicated to the long-term success of the business. Finding that person takes time and resources.

That’s where we can come in, and where our collaboration with HR departments begins. The pre-screening process:

  • Reference checks: We can get in contact with references, confirm the candidate worked with them.
  • Employment history: Were they honest about where they worked, and the responsibilities they had?
  • Education verification: Did they graduate? Was their school legitimate? Were they honest about their grades?
  • Worker compensation report: Do they suffer from an injury that would prevent them from working?
  • Criminal background checks: Are they a registered criminal? If so, what crimes did they commit? We can find out, nationally and internationally.
  • Nationwide Sex Offender check
  • Social Security Number validation
  • Drug screening

These, among many more, are all services we provide. Keeping a healthy and safe working environment is paramount to a productive business. We can help you screen a candidate and make an informed decision, set your heart at ease. 

With access to our wide array of tools and vast database, your HR department could not be better equipped. Whether you are employing nationally or internationally, we can help you find the right person. Someone who has got the company’s well being, as well as their own, in mind. A solid pre-screening process is crucial towards that goal.

If you would like information on how to start a working relationship with Nationwide Screening Services, please fill out the form below.

April 2020 Newsletter

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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 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

COVID-19 Precautions

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As COVID-19 makes its way around the world, we wanted to share how Nationwide Screening Services is preparing. Our top priority is, and always will be, the health and safety of our coworkers, clients, and partners.

To prepare for the eventuality that the situation worsens over time, NSS will be exercising our business continuity plans by observing a “work from home” for all staff. We envision this to be “business as usual” and do not anticipate any significant disruptions but wanted you to be aware. There may be delays fulfilling requests with courts, educational institutions and employers impacted by Coronavirus-related closures but we will continue to work diligently to complete your requests in the quickest time possible.

Our system will remain online and available for placing new orders. All of us here at NSS are grateful for your continued support, look forward to continuing to serve you and your business, and most importantly, send our sincere wishes for health, safety, and peace of mind.

All our best,

The NSS Team

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