August 2018

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
August 2018


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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more


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.

Read
more

August 2018
LEGAL ISSUES
August 2018


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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more


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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more


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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more


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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more

August 2018
DRUG SCREENING
August 2018

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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more


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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more

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.


Read more


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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more

August 2018
IMMIGRATION & eVERIFY ISSUES
August 2018

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.


Read more


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.

Read
more

DATA PROTECTION & PRIVACY
August 2018

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

July 2018

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
July 2018


Samsonite CEO Steps Down After His Credentials are Questioned


Samsonite CEO Ramesh Tainwala recently resigned after a
research report issued by short-seller Blue Orca said he falsely
claimed on his resume that he earned a doctorate in business
administration from Union Institute and University in Cincinnati.
Samsonite called the report “one-sided and misleading,” but will
replace Tainwala with CFO Kyle Gendreau.

Read
more


Asking a Job Applicant Previous Pay May Violate the Equal Pay Act


The United States Court of Appeals for the Ninth Circuit recently
enacted a law that prior pay cannot be used to justify wage
differentials between employees under the Equal Pay Act of 1963
(EPA). There are four exceptions to the rule, however: an
employer’s use of a seniority system, an employer’s use of a merit
system, an employer’s use of a quantity-based system and “any
factor other than sex.” Rizo v. Yovino perfectly emphasizes the
importance of the EPA. After the Fresno County Office of
Education used a female employee’s prior pay to explain why it
paid her less than men who performed equal work, the Ninth
Circuit ruled that the employer would no longer be using previous
pay to justify unequal wages under “any factor other than sex.”

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more


Massachusetts’s Attorney General on the Lookout for
Prohibited Criminal History Inquiries


Seventy employers are being investigated for violating
Massachusetts’s “ban the box” law, which prohibits most
businesses from asking about job candidates’ criminal
backgrounds on initial employment applications. The Boston-area
businesses range from a restaurant chain to a skin care company
to a book store. Three of the larger companies were fined $5,000
each and all were required to alter their application process to
comply with state requirements. Warning letters also were sent out
to other companies in question.

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more

July 2018
LEGAL ISSUES
July 2018


Pennsylvania Governor Wolf Issues Executive Order
Attempting to Address Pay Inequality

In June, Pennsylvania Governor Tom Wolf signed Executive Order 2018-18-03, which addresses the gender pay gap in the state. All
state agencies under the governor’s jurisdiction have been directed to: No longer inquire about a job applicant’s current compensation or compensation history at any stage during the hiring process; base salaries on job responsibilities, position pay range and the applicant’s knowledge, skills, competencies, experience, compensation requests, or other bona fide factor other than sex, except where compensation is based on clearly defined situations; and clearly identify the appropriate pay range on job postings. Applicants are not, however, prohibited from volunteering information about their current compensation level or salary history.

Read
more


St. Louis Bans the Box to Help Ex-Offenders Find County
Jobs

St. Louis County has joined other area governments that have
enacted “ban the box” policies, prohibiting employers from asking
job applicants about their criminal histories in their initial
employment applications. The executive order, signed by St. Louis
County Executive Steve Stenger, asks the county director of
administration and director of personnel to remove criminal history
from employment applications. It does not, however, prevent a
criminal background check as a condition of employment in St.
Louis County government.

Read
more

July 2018
DRUG SCREENING
July 2018

Cannabis Use Across Industries and Occupations: What Can
A
Business Do?

Nine states and the District of Columbia now have legalized
marijuana for recreational use. Twenty additional states allow
medical marijuana and the numbers are expected to grow.
Employers are finding it difficult to comply with both state and
federal laws since marijuana still remains a Schedule I illegal drug
under the Controlled Substance Act. In April, the Food and Drug
Administration (FDA) requested public comments regarding the
use of cannabis, while its advisory panel unanimously
recommended approval of a cannabis-based medication to treat
seizures in children. Senate Minority Leader Chuck Schumer also
announced that he would introduce a bill to decriminalize
marijuana under federal law, while President Donald Trump
promised a Colorado senator that he would “support efforts to
protect states with legalized marijuana.” Currently, however,
because of its place as a Schedule I drug, employers are permitted
to require a drug-free workplace, but should consider specific laws
regarding medical marijuana use.

Read
more


Cannabidiol and Drug Tests


Cannabidiol (CBD), one of approximately 400 compounds found in
cannabis, does not produce a high, but research surrounding its
use is in its early phases. So far, studies have revealed that CBD
“may benefit medical and therapeutic issues such as seizures,
PTSD, neurological diseases, pain, cancer, inflammation and
mood disorders.” Sara Jane Ward, assistant professor of
pharmacology at the Temple University Lewis Katz School of
Medicine, told U.S. News Health that, because the U.S.
Department of Agriculture does not test for CBD, companies are
able to sell its products more often. Available in oil, vapors, and
beauty and health products, the compound itself would not
produce a positive test for marijuana or marijuana metabolite.
However, if the product contains THC at a higher concentration, it’s
possible a drug urine test could come back as positive.

Read
more

Company Fired Employee for Participation in MedicationAssisted
Treatment for Drug Addiction, Federal Agency
Charged

Foothills Child Development Center was found to have violated
federal law under the Equal Employment Opportunity Commission
(EEOC) when it terminated employee Leon Dabrowski, after he
disclosed his participation in a supervised medication-assisted
treatment (MAT) program. The afterschool teacher was hired to
work at the Easley, S.C., facility, but was fired just 30 minutes into
his first day of employment due to the use of Suboxone. Foothills is required to pay Dabrowski $5,000 and also has entered into a fiveyear
consent decree, which requires the company to amend its
written drug use policy to include a clear and specific exclusion to
the policy for individuals who use legally-obtained prescription
medication in a lawfully prescribed manner.


Read more


Maine’s New Recreational Marijuana Law Permits Employers
to Enforce Policies Restricting Use

On May 2, 2018, an amended law permits employers in the state
of Maine to enforce workplace policies restricting the use of
marijuana and to take disciplinary action in accordance with those
workplace policies. The original law prohibited employers from
refusing to employ a person who used marijuana outside of the
employer’s property, while the new law does not require an
employer to permit or accommodate the use, consumption,
possession, trade, display, transportation, sale or cultivation of
marijuana or marijuana products in the workplace. In addition, the
new law states that an employer may enact and enforce workplace
policies restricting the use of marijuana and marijuana products,
and allows the employer to discipline employees who are under
the influence of marijuana in the workplace or while otherwise
engaged in activities within the course and scope of employment.

Read
more


Vermont Attorney General Publishes Guide to Marijuana in the
Workplace


As a precursor to the enactment of Vermont’s July 1, 2018,
recreational marijuana law, the Vermont Office of the Attorney
General released the “Guide to Vermont’s Laws on Marijuana in
the Workplace” to address key factors regarding the state’s
marijuana laws and guides employers on the topic of drug testing
in the workplace. For example, individuals in the state no longer
will face criminal penalties for possessing up to an ounce of
marijuana or five grams of hashish and two mature and four
immature marijuana plants. Employers still maintain certain rights,
however, regarding the regulation of use, consumption and
possession, as well as policies prohibiting the use of marijuana in
the workplace, among others. The use of prescription marijuana by
employees with certain debilitating medical conditions is permitted
under Vermont’s medical marijuana law, but workplace laws do
apply.

Read
more

July 2018
IMMIGRATION & eVERIFY ISSUES
July 2018

Latest ICE Aggressive Enforcement Targets Northern Ohio
Meat Processing Plant

The arrest of more than 140 workers at four meat processing
plants in Ohio as part of an Immigration and Custom Enforcement (ICE) raid on June 19, 2018, is being called the largest workplace
raid in recent history. The business, Fresh Mark, a member of ICE’s
voluntary ICE Mutual Agreement between Government and
Employers (IMAGE) Program, has reportedly been under investigation
for more than a year.


Read more

July 2018

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

June 2018

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
June 2018


Workers with Criminal Records

A new study commissioned by the Society for Human Resource Management (SHRM) and the Charles Koch Institute (CKI) revealed that about two-thirds of human resource professionals are open to hiring or have hired applicants with criminal histories. Employers who choose to hire those with criminal records should consider the real and perceived risks and should communicate their policies and practices to their employees. Noteworthy findings include: More than 80 percent of managers and two-thirds of HR professionals feel that those with records bring value to the company; the majority of workers say they are willing to work with individuals with criminal records; and a demonstrated consistent work history often overrides an employee’s past criminal history.

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more


Vermont Enacts Salary History Inquiry Law

Vermont has joined several other states that have enacted a law to prohibit employers from inquiring about, seeking or requiring salary history information from prospective employees. Taking effect July 1, employers and their agents will be prohibited from inquiring about or seeking information regarding current or past compensation, requiring that current or past compensation satisfy minimum or maximum criteria, and determining whether to interview based on current or past compensation. Voluntary disclosure, however, is an acceptable reason for an employer to seek confirmation.

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more


Connecticut Enacts Salary History Inquiry Law

A bill has been signed into law by Connecticut Governor Dannel Malloy that will restrict employees from inquiring about applicants’ salary history during the hiring process. The law, which will take effect Jan. 1, 2019, will permit employers to inquire about “other elements of a prospective employee’s compensation structure, as long as such employer does not inquire about the value of the elements of such compensation structure.” In addition, the law doesn’t apply to any actions taken by an employer or its agent pursuant to any federal or state law that authorizes the disclosure or verification of salary history for employment purposes.

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more

June 2018
LEGAL ISSUES
June 2018


Portion of Philadelphia Salary History Ban Ruled Unconstitutional

Philadelphia Federal Judge Mitchell S. Goldberg recently held that the portion of the city’s salary history ordinance that prohibits an employer from inquiring about a prospective employee’s wage history is unconstitutional because it violates the First Amendment’s free speech clause. The judge also held that the portion of the law prohibiting employers from relying on wage history to determine a salary did not implicate constitutional concerns. In January 2017, Philadelphia became the first city to adopt a “salary history” ban, which prevent employers from asking about wage history or requiring prospective employers to disclose wage history as a condition of employment.

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more


Another Change to Massachusetts Ban-The-Box Law

Massachusetts employers soon will no longer be permitted to inquire about convictions and sealed or expunged records for employment purposes. About 10 years ago, the state became the second to enact a “ban-the-box” law and on Oct. 13, a criminal justice reform bill, signed by Governor Charlie Baker, reduces the five-year period for inquiring about misdemeanors to three years, among other amendments. In addition to being prohibited from asking about sealed records, employers may not ask about a criminal record that has been expunged.

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more


Bank Moves to Dismiss Background Screening Class Action Complaint Based on Federal Preemption Argument

In March, PNC Financial Services Group, Inc., moved to dismiss a class action complaint filed by Damian McCoy in the Western District of Pennsylvania. The individual sued the business after his conditional employment offer was revoked when a 2011 arrest was discovered. McCoy claims that, because the felony and misdemeanor charges had been withdraw, the revocation of his employment offer violates Pennsylvania’s Criminal History Record Information Act (CHRIA). The law prohibits employers from considering criminal history record information that doesn’t rise to the level of conviction. PNC argued that the federal banking law, Federal Deposit Insurance Act (FDIA), imposes different and conflicting requirements on federally-insured banks.

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more


Former Employees Hit Naples Hotel Group with FCRA Class Action Over Background Checks

A putative Fair Credit Reporting Act (FCRA) class action, filed Feb. 13 in the Ninth Judicial Circuit Court in Orange County, Fla., has been removed by Naples Hotel Group LLC. The lawsuit alleges that Naples “improperly obtained and used consumer reports about prospective and existing employees without complying with the FCRA’s disclosure and authorization requirements.” Lead plaintiffs Shawana Sanders and Kenyatta Williams, former employees of the business, say the company’s “extraneous provisions” distracted them from understanding the import of the disclosure.

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more


Background Screening Company Defeats FCRA Claim with Standing and Effective Procedures Defenses

An Ohio plaintiff’s claim under the Fair Credit Reporting Act (FCRA) was thrown away because he couldn’t show that the report caused him an injury or that the background screening company failed to maintain reasonable procedures to ensure accuracy. Thomas Black filed the class action suit against General Information Solutions (GIS) after the company performed a background check. The vendor who was assigned the task reported a robbery charge that did not result in a conviction, which had been dismissed. The report was thrown away after the plaintiff submitted a dispute, but he failed to return the requested references and was no longer considered. The Court determined Black suffered no harm as the result of GIS’ alleged violation of the FCRA.

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more


Ohio Court Throws Out FCRA Case Based on Initial Grade

Plaintiff Deloris Reid disclosed that she had been convicted of a misdemeanor assault a year before applying with grocery retailer Kroger. She filed a putative class action suit in the Southern District of Ohio under the Fair Credit Reporting Act (FCRA) after General Information Solutions, Inc. (GIS) discovered a separate felony conviction during her background check. Reid disputed the report and GIS later determined that the charged had been reduced to a misdemeanor. Reid still was ineligible for hire based on the temporal proximity of her misdemeanor assault conviction. The Court rejected her resulting argument that Kroger violated the FCRA by taking an adverse action without providing her with a copy of her initial background check and description of her FCRA rights, finding that the grade was only preliminary.

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more

June 2018
DRUG SCREENING
June 2018

Workforce Drug Positivity at Highest Rate in a Decade, Finds Analysis of More than 10 Million Drug Test Results

The 30th year of the Drug-Free Workplace Act and the Quest Diagnostics Drug Testing Index (DTI) continues to demonstrate that drug positivity rates are on the rise. For instance, the positivity rate for cocaine has increased for the fifth year in a row in the general United States workforce, while methamphetamine use has skyrocketed in the Midwest and South regions. Important to note was the decline in positivity rates for opiates in the general U.S. workforce in urine drug testing. The Centers for Disease Control has noted that the overall national opioid prescribing rate in 2017 fell to the lowest in 10 years. It should come as no surprise that marijuana positivity continued to increase in the general workforce due to the new legalization statues.

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more


Drug Using Employee? Better Conduct An “Individualized Assessment” Before You Fire!

A one-size-fits-all approach to employee termination as the result of positive drug tests simply isn’t realistic. A recent lawsuit was settled in South Carolina for $5,000, after the termination of a teacher, who disclosed information regarding his prior opiate addiction and participation in a supervised medication-assisted treatment program. The employer also must face a consent decree, ordered by the Court, which will last five years and requires the business to amend its written drug use policy, create an Americans With Disabilities Act-compliant procedure, provide annual training and report to the Equal Employment Opportunity Commission (EEOC) the identities of all applicants who were denied employment and those who were terminated due to current or past alcohol, drug or substance use.

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more

2018 Worksite Enforcement Investigations Already Double 2017 Total

The U.S. Immigration & Customs Enforcement (ICE) has reportedly doubled the number of audits that it conducted during the entire 2017 fiscal year. In May, the agency’s Homeland Security Investigations (HSI) unit reported opening 3,510 worksite investigations in the current fiscal year, which includes 2,282 employer I-9 audits, 594 criminal and 619 administrative worksite-related arrests. Those in violation of the law could face both criminal and civil penalties, which last year resulted in $97.6 million in judicial forfeitures, fines and restitution, and $7.8 million in civil fines.


Read more

June 2018
IMMIGRATION & eVERIFY ISSUES
June 2018

2018 Worksite Enforcement Investigations Already Double 2017 Total

The U.S. Immigration & Customs Enforcement (ICE) has reportedly doubled the number of audits that it conducted during the entire 2017 fiscal year. In May, the agency’s Homeland Security Investigations (HSI) unit reported opening 3,510 worksite investigations in the current fiscal year, which includes 2,282 employer I-9 audits, 594 criminal and 619 administrative worksite-related arrests. Those in violation of the law could face both criminal and civil penalties, which last year resulted in $97.6 million in judicial forfeitures, fines and restitution, and $7.8 million in civil fines.


Read more

June 2018

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

MAINE HOUSE OVERRIDES GOVERNORS’ VETO TO MAKE MARIJUANA LAW MORE EMPLOYER FRIENDLY

Maine House Overrides Governors’ Veto to Make Marijuana Law More Employer Friendly

On May 2, 2018, the Maine House and Senate voted overwhelmingly to override Governor Paul LePage’s veto and passed LD 1719, which establishes rules for licensing and regulating marijuana producers, processors, retail establishments, and more. “An Act to Implement a Regulatory Structure for Adult Use Marijuana” provides additional clarity to the rules related to marijuana and the workplace in the state.

In part, the new law states in section §112. Employment policies

Except as otherwise provided in the Maine Medical Use of Marijuana Act, an employer:

Marijuana in the workplace. Is not required to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or cultivation of marijuana or marijuana products in the workplace;
Workplace policies regarding marijuana use. May enact and enforce workplace policies restricting the use of marijuana and marijuana products by employees in the workplace
or while otherwise engaged in activities within the course and scope of employment; and

Discipline of employees. May discipline employees who are under the influence of marijuana in the workplace or while otherwise engaged in activities within the course and scope of employment in accordance with the employer’s workplace policies regarding the use of marijuana and marijuana products by employees.
The Maine Department of Administrative and Financial Services, responsible for the administration of this law, is directed to consult with the Department of Labor “prior to the adoption of any rules concerning workplace, employment or other labor matters involved in the regulation of adult use marijuana and adult use marijuana products.”

The previous version of the personal marijuana use implementation law contained an anti-discrimination provision that stated that employers “may not refuse to . . . employ . . . or otherwise, penalize a person 21 years of age or older solely for that person’s consuming marijuana outside of the . . . employer’s . . . property. While it is not clear that this issue has been fully addressed the new version of the law clearly states, “May enact and enforce workplace policies restricting the use of marijuana and marijuana products by employees in the workplace or while otherwise engaged in activities within the course and scope of employment.” With the wording ‘in the workplace’ it would appear that the ‘while working’ aspect has been addressed, however, what employers are allowed to do with an employee who comes to work under the influence of marijuana used outside of the workplace still potentially remains and open question.

Although the latest legislative action is an attempt to correct the governor’s veto, what remains to be seen is how this law will be interpreted. While it seems that §112 of the new enabling law opens the door to employer drug testing programs and discipline for violation of those policies, you will note that employer actions are limited to conduct within the workplace. This new law doesn’t prohibit discipline for an employee’s use of marijuana “outside the employer’s property.”

Further clouding the issue is the reality that Maine is the only state (at this moment) authorizing the medical and personal use of marijuana and with a very detailed mandatory workplace drug testing law.

I guess we will just have to wait and let the lawyers sort this one out.

To read the full act go to – An Act to Amend the Marijuana Legislation Act

May 2018

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
May 2018


Woman Steals ID to Get Six-Figure Job, But Can’t Do the Work

Forty-one-year-old Cindy White of Louisiana was found guilty of
identity theft after she used another woman’s ID to get a job at
Diversified Food and Seasonings and was promoted to a senior
position with a six-figure salary. Her fraud was exposed after the
company realized she was having trouble with jobs that should
have been within her claimed ability and was delegating much of
her work. Investigators found that she copied another woman’s
resume from LinkedIn and stole her identity numbers from another
website.

Read
more


Appeals Court Says Prior Salary Doesn’t Justify Pay
Differences

Federal appeals court recently ruled that an employee’s salary
history is insufficient to justify pay differences between male and
female employees. The Equal Pay Act, adopted in 1963, requires
employers to pay men and women the same salary for equal work,
but it does provide four exceptions: a seniority system, a merit
system, a system that measures earnings by quantity or quality of
production and a differential based on any other factor other than
sex. The recent decision, which only applies to nine western states, overruled a 1982 case that allowed employers to base a pay differential on an employee’s prior salary history.

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more


I Hired Him Without Performing a Background Check. Then He Stole His Colleagues’ Identities

When three employers came to a senior HR manager at a foreign banking company claiming their identities had been stolen, he recognized an internal problem. After hiring an investigative company that specialized in fraud, it was discovered that a temp employee who was hired through an outside agency had been stealing information from personal files. The company learned two hard, but important, lessons: Quickly determine when something is outside of your element and know when it’s time to get help, and always perform background checks for temp employees.

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more

May 2018
LEGAL ISSUES
May 2018


Criminal Record Screening Policies Continue to Raise Important Compliance Issues

A recent settlement by Target reinforces the importance of employers to be vigilant with all applicable laws pertaining to criminal record screening policies. Plaintiffs in the case allege that Target’s criminal-record-screening policies had a disparate impact on African-American and Latino job applicants for store positions. The claim centered on the standards for assessing ex-offender job applicants as eligible or ineligible for employment. Over a period of several years, the parties negotiated a pre-litigation class-wide settlement that must be approved by a federal court. In early April, a settlement submitted by the plaintiff’s attorneys would require programmatic relief in addition to a monetary payment.

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Budding Development: States Requiring Employers to Tolerate Medical Cannabis Use

Changes in cannabis laws are causing some employers to think twice before denying employment to individuals because they tested positive for the use of marijuana that they are ingesting for state-authorized medical reasons. In Arizona, an employer may not discriminate because of a person’s status as a cannabis cardholder, unless failure to do so would cause an employer to lose certain benefits under federal law. Delaware law is similar, however, an employer can prohibit the ingestion, possession, or impairment of marijuana in the workplace. Employers in Maine cannot test applicants for cannabis unless they submit a request to the State of Maine that that request is approved. Employers there also cannot use a positive test for cannabis to prove that an employee is impaired by cannabis. Other states with similar laws include Minnesota, New York and California.

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Swimming Against the Tide, Michigan Forbids Salary History Bans Statewide

Michigan’s governor recently signed a bill that forbids localities from adopting salary history bans. The Bill, Senate Bill 353, prohibits local governments from adopting rules regulating the information that an employer or potential employer must request or exclude on an application for employment or during an interview process. While the Michigan Chamber of Commerce and other business groups supported the legislation, Democrats blasted the bill as an attack on local control and argued that it could hinder community efforts to address pay gaps. The legislation comes as several states and cities have moved to prevent employers from asking about applicants’ compensation history.

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The Truth Brings Relief Under FCRA

In Ratliff v. A&R Logistics, Inc., the plaintiff claimed A&R denied him a job based on a background check without the appropriate adverse action process. Ratliff alleged that the company failed to properly provide pre- and post-adverse action as set forth under the Fair Credit Reporting Act (FCRA) guidelines. A&R moved to dismiss, arguing that the plaintiff lacked Constitutional standing. The Northern District of Illinois agreed after it first considered whether an “informational injury” occurred. Ratliff failed to allege any inaccuracies that could cause concrete harm, therefore, no injury existed and the decision stood.

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Vitas Healthcare Corp. Employees Alleges Form Violates Fair Credit Reporting Act

Vitas Healthcare Corp. job applicant Jazzina Williams alleges she was provided a facially invalid authorization form when she applied for employment. The complaint states that the plaintiff signed background investigation authorization and release forms, but she alleges the form is unlawful because it includes a clause requiring applicants to “release from liability all persons, companies and governmental or other agencies disclosing such information.”

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Illinois District Court Finds Job Applicant Has No Standing to Bring FCRA Adverse Action Claim

The Northern District Court of Illinois recently confirmed that even if an employer fails to follow the proper procedure, an applicant may not have standing to bring an adverse action claim if the background check as issue is accurate. In Ratliff v. A&R Logistics, Inc., plaintiff Jerome Ratliff, Jr., claimed that the company declined to hire him based on his background check without following a proper adverse action process. A&R moved to dismiss the complaint on the ground that Ratliff had not suffered any injury-in-fact. Because Ratliff failed to allege that the background check on him contained any inaccuracies, he could not show any “informational injury.”

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Impending Necessary Ban-the-Box Updates for Criminal Record Inquiries in Massachusetts and San Francisco

Massachusetts enacted the Criminal Offender Record Information (CORI) Reform Act that includes a “Ban the Box” component. Recently, Gov. Charlie Baker signed amendments that place further restrictions on employers that inquire about prior criminal records. Taking effect Oct. 13, 2018, the important changes include: a provision that an employer shall not inquire into convictions for misdemeanors where the date of the conviction occurred three or more years from the date of application, unless there was an intervening conviction; the prohibition of an employer from asking an applicant about “a criminal record, or anything related to a criminal record, that has been sealed or expunged,” and a required application statement for those employers who seek “information concerning prior arrests or conviction of the applicant.” An amendment to San Francisco’s “Ban the Box” law also further restricts employees from considering criminal record information.

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New Vermont Pot Law: What Employers Need to Know

People 21 or older in Vermont soon will be legally permitted to possess limited quantities of marijuana and marijuana plants. Possession includes up to one ounce of marijuana or 5 grams of hashish and two mature or four immature plants. The law does not affect an employer’s ability to enforce rules on smoking or use of the drug in the workplace. The law does, however, prohibit the consumption of marijuana in a “public place” and doesn’t protect people who possess or consume marijuana from laws related to driving under the influence or consuming marijuana while driving. Businesses should consider drafting policy language that clarifies the company’s position on marijuana use.

May 2018

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DRUG SCREENING
May 2018

Iowa Drug Testing Law Amended: Lawsuits on the Rise

Iowa’s 10-page drug testing statute, enacted more than 30 years ago, includes provisions addressing permissible types of tests, written notice requirements, rehabilitation for positive alcohol test results, split-specimen testing, and mandatory supervisor training, among other things. The Governor recently signed an amendment into law that will allow employers to take action based on an alcohol test result of .02 grams of alcohol per two hundred ten liters of breath. In 2017, an amendment clarified that hair follicle testing is appropriate for pre-employment drug testing.

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Drug Testing: Is It Time for a Change?

The increase in the demand for workers has led to employers rethinking their drug testing practices. Many believe that overly broad testing eliminates valuable talent from the applicant pool, especially in states where marijuana has been legalized in some form. According to a recent Express survey, the majority of businesses lose job applicants because of drug test failures. In fact, 37 respondents said less than 5 percent of applicants do not pass a drug test and 13 percent said 5 to 9 percent do not pass.

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May 2018
IMMIGRATION & eVERIFY
May 2018

Ice Now Taking More Opportunistic Approach to Employer Sanctions

In what is believed to be the largest single workplace raid since 2008, U.S. Immigration and Customs Enforcement (ICE) took 97 people into custody at a meat processing plant in Tennessee. The facts underlying the raid show there is more inter-agency cooperation and a new emphasis on illegal immigration discovered than during other types of investigations. The government reportedly went to the facility to execute a criminal search warrant from the Internal Revenue Service’s Criminal Investigation Division, which led to an immigration investigation.


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DATA PROTECTION & PRIVACY
May 2018

GDPR Preparation

The General Data Protection Regulation (GDPR) due date is May 25, 2018 and there are several things that can be done in preparation for the big day. It is important to start by reading the GDPR in its entirety, especially the Recitals, which will give context for the Articles and also provide guidance on what is expected. In addition, strive to meet the GDPR requirements, as stated in the documentation. Other starting points include appointing someone for GDPR compliance; determining the functions of a Controller and Processor; making changes to Service Agreements with clients and vendors; updating Privacy Notices; completing the Records of Business Processing (Article 30); documenting compliance; and training staff.


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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

GUNS IN THE WORKPLACE: A PRESSING PROBLEM FOR AMERICAN COMPANIES

GUNS IN THE WORKPLACE: A PRESSING PROBLEM FOR AMERICAN COMPANIES

The National Threat Assessment Center reported that between January and December 2017 incidents of mass attacks, during which three or more persons were harmed, were carried out in public places within the United States. These acts violated the safety of the places [where people] work, learn, shop, relax and otherwise conduct their lives.1

For those incidents that occurred in a workplace, it is no question it was a tragedy for the victims and their families, however, in the vast majority of the situations its also likely was the beginning of a nightmare scenario for the employer involved.

The ensuing law suit will allege that the employer was grossly negligent because the shootings were reasonably foreseeable based on the shooter’s history of misconduct and his known propensity for violence. In support of the claim, the family’s attorney will argue that the company:

should have known the shooter would likely or was capable of harming people;
negligently failed to take appropriate security precautions and allowed the employee to return to the premises
negligently retained the shooter for years
negligently did not have a workplace violence program in place to protect employees.
Further complicating the issue is that some 22 states have passed laws that limit property owners’ ability to ban firearms in vehicles in parking areas, according to the Law Center to Prevent Gun Violence, a San Francisco-based gun-control advocacy group.

Putting politics aside, easy and immediate access to firearms in the company parking lot presents challenges for employers and their duty to provide ‘‘a safe and healthy work environment.’’ in addition, easy and immediate access raises concerns about the potential for employee violence by an employee with a ‘short fuse’ as an emotional response without a ‘cooling off’ period that would naturally occur if the employee had to go home or go purchase a gun.

To minimize the above referenced legal risk regarding negligence, vicarious liability and to promote a safe work environment, employers often implement workplace violence policies that include a ban on weapons at the workplace where they are legally allowed to do so. Negligence occurs when an employer does not take reasonable actions to address or prevent violence that was foreseeable or that they should have known may occur. Vicarious liability happens when an employer can be vicariously held liable for wrongful acts committed by an employee in the course and scope of their employment.

While, there is no federal law that regulates weapons at private workplaces, beginning with Oklahoma, several states have enacted so-called guns-at-work laws. These laws, which are typically designed to protect employees’ rights to possess concealed firearms, vary in terms of their restrictions.

The following is a general overview of ‘Guns at Work’ or ‘Guns in the Parking Lot’ laws as they are sometimes referred to: 2

Protect employees’ rights to store firearms in their private vehicles even when parked in the employer’s parking lot.
Limit an employer’s ability to search vehicles on its property.
Prohibit discrimination against gun owners.
Permit employers to prohibit weapons at work if they post a required notice.
Subject an employer to fines for failure to comply with the law’s restrictions or requirements.
Provide protection to employers that comply, including immunity from injuries arising out of compliance.
Specify that employers can allow weapons at the workplace without violating the OSH Act general duty clause which states that a company is required provide a safe work environment from know work hazards, e.g., workplace violence.
The challenge for employers is that on the one hand, without immunity, complying with a law that allows employees to bring concealed firearms to the employer’s property can increase legal risk or if the laws are not complied with their company may face civil or criminal penalties in some states. The lack of consistency and hodgepodge of requirements in state laws also makes for a complex situation for employers to manage.

So what is an employer to do?

Barry Nixon, Executive Director, National Institute for Prevention of Workplace Violence, Inc, offers the following advice. The current reality in today’s world is that the possibility of workplace violence or an active shooter situation occurring in your workplace should be recognized as a real potential issue. Consequently, employers should have a plan for preventing and/or addressing an incident if one should occur. The following are some of the items that should be included In your plan:

Establish a workplace violence prevention plan that includes a specific component that addresses active assailant (shooter) situations.
Establish either a separate policy or incorporate into your workplace violence policy a section that addresses ‘Weapons in the Workplace.’ We recommend a separate policy.
This section or policy should prohibit employees from bringing firearms and other identified weapons on to your property or premises; in jurisdictions that have ‘Guns in the Parking Lot’ laws the policy should specifically limit employees rights to bring a weapon on to company property to the parking lot where the weapon must be stored in locked vehicle and out of sight. In other words, it should be clearly stated that these laws do not allow an employee to bring their weapon into your building or workplace.
In addition, in jurisdictions that permit guns in the parking lot, employers should consider security implementing measures that control access to employer parking lots where firearms can be stored. Having trained security personnel monitoring such areas can limit the likelihood an enraged employee can access his firearm and return to the workplace to cause harm without notice.
If not otherwise prohibited by state or local law, designate a separate, gated and secure area in the company parking lot for employees transporting guns in their cars. Further security for this area might include surveillance cameras and dedicated security personnel to control and monitor access to and from the ‘‘gun lot.’’ The policy should clearly state that possession of a firearm outside of the specific parking area is strictly prohibited, and failure or refusal to adhere to this policy may result in disciplinary action up to and including termination.3


Finally, except that ‘Murphy’s Law’ is alive and well and despite your best efforts something can go wrong, make sure you develop a crisis management plan to address an incident should one occur.
Active shooter incidents continue to haunt the American workplace and no employer should deny the real possibility of an incident occurring at their workplace. As Nashua Police Office Dan. David Elliott, put it, “Hope is not a course of action,” in preparing for how to deal with an active shooter incident.” Accordingly, employers should do their absolute best to prevent harm from coming to their employees by implementing a well-developed workplace violence prevention policy and plan that addresses active assailant (shooter) situations despite the complicating factors in ‘Guns in the Parking Lot’ laws

LI Business Expo May 10th

Nationwide Screening Services will be exhibiting at the

LI Business Expo

May 10th

NYCB LIVE home of The Nassau Veterans Memorial Coliseum
Hempstead, NY

Come Visit us at Booth 502

April 2018

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.

Nationwide Screening Services will be exhibiting at the Long Island Business Expo on May 10th at the NYCB LIVE home of the Nassau Veterans Memorial Coliseum. Come visit us at Booth 502!

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
April 2018


Wisconsin Commission Finds Employers Cannot Consider Expunged Convictions – Even if Substantially Related to the Job

The Wisconsin Fair Employment Act prohibits employers from taking adverse employment action against an applicant or employee because of the individual’s conviction record, unless the conviction is “substantially related” to the position. Wisconsin law permits certain offenders who commit crimes before they reach the age of 25 to have their convictions expunged. In Staten v. Holton Manor (January 30, 2018), an applicant applied for a job as a certified nursing assistant at a skilled nursing facility. She disclosed on her application that she had been convicted multiple times, but that one of the convictions had been expunged. When she was not hired, the individual filed a charge of discrimination alleging the employer had violated the Wisconsin Fair Employment Act. The Wisconsin Labor and Industry Review Commission concluded that the employer could not rely on the expunged conviction when arguing that the individual’s conviction record was substantially related to the job.

April 2018

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LEGAL ISSUES
April 2018


9th Circuit Affirms Dismissal of FCRA Putative Class Action for Lack of Standing

The Ninth Circuit has ruled that the plaintiff in Bassett v. ABM Parking Services, Inc., et al., Case No. 2:16-CV-00947 (9th Cir. 1018) failed to allege a concrete injury-in-fact sufficient for Article III standing in a suit alleging a violation of the Fair Credit Reporting Act (FCRA). The panel applied Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), in which the Supreme Court emphasized Article II standing requires a concrete injury even in the context of a statutory violation. The panel also discussed the legislative history of the FCRA requirement to redact credit card expiration dates and concluded that the congressional judgment weighted against the plaintiff because Congress’ findings showed that a disclosed expiration date by itself posted minimal risk. And finally, the panel found the plaintiff’s alternative statutory theories of injury to be unpersuasive.

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Washington Ban the Box Law Limits Criminal Background Inquiries

Washington will become the next state to implement “ban the box” legislation in June. Governor Jay Inslee signed into law the Washington Fair Chance Act (WFCA) on March 13, which prohibits inquiries regarding applicants’ conviction histories until the employer has determined the applicant is “otherwise qualified” for the position. Some employers are excluded, including those hiring a person who will or may have unsupervised access to children under the age of 18 or a vulnerable adult or person, and any employer, including a financial institution, who is expressly permitted or required under any federal or state law to inquire into, consider or rely on information about an applicant’s or employee’s criminal record for employment purposes; among others. Maximum penalties begin with a fine of $750 for first violations and $1,000 for each subsequent violation.

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US Companies Doing Business in the EU or Impacting EU Individuals Must Comply with the EU GDPR by May 25, 2018

In a short two months, the European Union’s General Data Protection Regulation will take effect. The deadline for compliance is May 25, 2018. The GDPR significantly expands the jurisdiction of the EU’s data privacy framework to companies processing or controlling the personal data of employees or other individuals residing in the EU – regardless of the company’s location. The GDPR covers companies if it falls under one of the following tests: ‘establishment,” “goods and services” or “monitoring.” Among other heightened requirements and obligations, if a company is covered under the GDPR, it will be subject to stricter rules on obtaining employee consent to process and share personal data; it may have to appoint a data protection officer; and its employees will have greater rights with respect to access and control of their personal data.

April 2018

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DRUG SCREENING
April 2018

Maine Recreational Marijuana Law Limits Drug Testing, Disciplinary Consequences Imposed by Employers

Effective February 1, 2018, a provision of Maine’s recreational marijuana law prohibits employers from taking adverse employment actions for off-premises marijuana use. One of the provisions provides that employers are not required to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or growing of marijuana in the workplace. In addition, employers are permitted to enact and enforce workplace policies restricting the use of marijuana by employees and discipline employees who are under the influence of marijuana in the workplace. The law does, however, prohibit employers from “refusing to employ a person 21 years of age or older solely for that person’s consuming marijuana outside of the … employer’s property.”

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California Cities Drop Thousands of Marijuana Convictions

San Francisco and San Diego are moving to erase thousands of marijuana convictions en masse, which could be life-changing for some and helpful, especially, to minorities. San Francisco District Attorney George Gascon said he aims to “fix the harm that was done not only to the entire nation but specifically to communities of color.” Nine states have marijuana laws that allow people to clear or modify their records, according to the National Conference of State Legislatures.

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Hair or Saliva or Urine? Which is Best for Drug-Testing Job Candidates?

There are currently three primary methods for specimen collection for employers who want to create a safe and healthy workforce through drug screening. Urine testing is used by 90 percent of employers, according to HireRight, with saliva used by 10 percent and hair used by 7 percent. HIreRight’s Dr. Todd Simo noted that alternate specimens are gaining interest. “Both hair and oral fluid testing have had double-digit yearly growth as more companies become aware [of them],” he said. Urine and hair testing pick up many different drugs, such as prescription medications, while oral testing panels are typically screening for marijuana, cocaine, PCP, amphetamines and opioids.

April 2018

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IMMIGRATION & eVERIFY
April 2018

ICE to Employers: Expect More Form I9 Audits, Arrests and Outreach

Immigration and Customs Enforcement (ICE) agents conducted workplace raids on 77 businesses in San Francisco, Sacramento and San Jose in February and in early January, nearly 100 7-Eleven stores were targeted in the largest immigration enforcement operation conducted under President Donald Trump. Employers should expect this increase in worksite enforcement to continue. ICE audited 1,360 organizations in 2017, resulting in 71 indictments and 55 convictions of business owners and managers. But, as part of the ICE Mutual Agreement between Government and Employers voluntary compliance program, ICE and U.S. Citizenship and Immigration Services provide education and training on proper hiring procedures, fraudulent document detection and use of the E-Verify employment eligibility verification system, as well as certification for complying with the law.


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Response Protocol for I-9 Audit and Immigration Raid

A Form I-9 Audit begins when Immigration and Customs Enforcement (ICE) serves a Notice of Inspection to a company representative requesting a review of the company’s I-9 forms for every employee. ICE may not request any personnel file that goes beyond a current and past employees list with social security information. A Notice of inspection must be served at least three days before ICE conducts the audit. ICE may arrive at a place of business in its enforcement capacity by making an unannounced visit to the workplace to search the premises, question employees, and review documents. In order to carry out this type of “raid,” ICE must apply for a judicial search warrant based on evidence such as noncompliance during an I-9 audit. Employers should consider designating one employee as a “Response Lead” at each corporate location that is deemed of potential interest to ICE.

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April 2018
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

I.C.E. TO SIGNIFICANTLY INCREASE WORKSITE INVESTIGATIONS

I.C.E. to Significantly Increase Worksite Investigations

Not many employers read the “tea leaves” and foresaw what was coming when President Trump signed Executive Order 13788, entitled “Buy American and Hire American,” a broad directive which calls for the rigorous enforcement and administration of existing laws to protect the interests of US workers.

This put in motion a renewed and intensified focus on issues related to the I-9 form which is used to verify workers’ right to legally work in the United States. The Immigration and Customs Enforcement (ICE) Acting Director Thomas Homan forewarned employers about what was to come in late 2017 when he spoke about ICE’s mission and stated that worksite enforcement is an important component of ICE’s overall strategy and pledged to increase the time spent by his agency on worksite audits by “four or five times.”

Just in case you think this is political rhetoric and it will blow over consider the following:

In October 2017, Asplundh Tree Experts, Co., one of the largest privately-held companies in the United States, headquartered in Willow Grove, Pennsylvania, (“Asplundh”), pleaded guilty to unlawfully employing aliens, in connection with a scheme in which the highest levels of Asplundh management remained willfully blind while lower level managers hired and rehired employees they knew to be ineligible to work in the United States. Asplundh agreed to pay the $95 million dollar recovery fee, including $80 million dollars criminal forfeiture money judgment and $15 million dollars in civil payment. This represents the largest payment ever levied in an immigration case

In November 2017, Cloverhill, a subsidiary of Aryzta AG, Zurich, Switzerland, a maker of baked goods for fast-food chains and supermarkets said it’s struggling to run a Chicago bakery after it lost a third of its workers in a clampdown on 800 immigrants without sufficient documentation. The company reported that the Cloverhill issue has led to a 7 percent decline in their North American sales in the three months through October. This raid is one of the biggest U.S. employment headaches reported by a European company so far.
In January 2018, U.S. immigration agents descended on dozens of 7-Eleven stores and targeted about 100 stores nationwide to open employment audits and interview workers in what officials described as the largest operation against an employer under Donald Trump’s presidency.
Consider the impact that an ICE investigation could have. ICE can assess a monetary penalty for each I-9 that has one or more substantive or uncorrected technical violations using a sliding scale often known as the “matrix.” The exact fine will depend upon your overall error percentage as well as other subjective factors including the size of your business, good faith, and seriousness of the violations (to name a few). Employers with 50% or more errors will be fined at the highest amount – typically $935 per I-9. This does not include cost associated with the amount of time it takes to complete an I-9 audit and conduct overall program management.

In his article, ‘ICE Announces Up to Five-Fold Increase in Form i-9 worksite Inspections,’ John Fay, Immigration attorney, shared some proven strategies that employers can initiate right away to address the risks of an ICE worksite audit.1

(1) Compliance Awareness

Your first strategy is to emphasize the importance of the I-9 form and the process to your hiring managers and top management. Employers are charged with the responsibility to make sure they hire a legal workforce by completing the I-9 form in a timely and correct fashion.

(2) Conduct a Self-Audit

You should strongly consider working with experienced immigration counsel who can guide you in developing a remediation plan and ensures you follow all of the various rules for correcting past compliance mistakes.

(3) Create an I-9 Policy Document

Your policy should document how I-9s forms will be completed and reviewed for accuracy. Having standard operating procedures not only shows good faith, it also serves as a training document.

A good I-9 policy document will include the following essential details:

How (and when) will section 1 be completed by the new hire?
Who is responsible for verifying identity and employment eligibility documents and completing section 2?
Do we make/retain copies of supporting documents for all new hires, or only as required by E-Verify?
What is the I-9 process for rehires (complete section 3 when allowable or always prepare a new I-9?)
How do we handle remote hires?
How do we document name changes?
Who is responsible for managing reverifications (when required)?
Also the policy should include information on the following:

NOTICE PREPARATION
Employers should document the specific steps that will be taken when a Notice of Inspection is received including required notifications that may be required.

In addition, HR staff should also be aware of any “post-audit” notice requirements.

REVERIFICATION TRAINING
To minimize the risk of an improper reverification, employers should take the following action:

Make sure you clearly define who should be subject to reverification

Implement a reminder system to alert you of upcoming expirations which are occurring 90 to 120 days in the future so that you can properly inform your employees and give them time to provide you with updated documentation

Decide who will be responsible for actually performing the reverification and reviewing the original documents

(4) Use an Electronic I-9 System to Ensure Compliance Moving Forward

Maintaining I-9 compliance across your organization can be a moving target, given frequently changing compliance rules and the practical realities of employee turnover.2 In addition, the prospect of mandatory E-Verify may soon become a reality with the Legal Workforce Act, H.R. 3711, having been reintroduced by Rep. Lamar Smith. The bill would require all employers to use e-verify within two years.

Fausta Albi, immigration attorney for Larrabee Albi and Coker, LLP.generally advises clients to train employees at the front desk or receptionist area on how to handle audit requests.” Note that audit can be a particularly stressful occasion, and staff members may understandably want to be as accommodating as possible, however, under the new California law, employers can actually be penalized for being too helpful during the audit process

One more issue to make sure you advise your clients not to do is to become overly zealous and to decide to simply recertify all their employees just to be sure everyone has a correct I-9 and is legally employed. Sounds like a reasonable strategy, but in reality, will not only go afoul of some state laws it could get you into trouble with federal law as well.

Federal law prohibits improper reverification of current employees with so-called “unfair documentary practices” under the antidiscrimination provisions of the Immigration and Nationality Act. As an example, California’s Senate Bill 1001, in essence made unfair documentary practices a “fineable” offense under state law.

The ‘hand writing is on the wall,’ now is a critical time for employers to prepare for the emerging aggressiveness of ICE to avoid the consequences of these types of investigations which can result in the loss of workers, damage to company reputation and image, affect relationships with customers and the public in general.

March 2018

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

March 2018


Jury Awards Nearly $70.6 Million in Yacht Rape Case

A stewardess on board the Endless Summer yacht, docked at Universal Marine Center in Fort Lauderdale in 2015, was awarded nearly $70.6 million in damages after she sued the yacht’s owner following an incident involving the yacht’s deckhand. Rafael Dowgwillowicz-Nowicki was arrested and charged with four counts of sexual battery after the woman reported he entered her cabin drunk and forced her to have sex with him, threatening to kill her if she did not go along with it. The lawsuit alleged that the yacht’s owner failed to provide proper security for the victim.

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Salary History Question Off Limits on Job Applications: What
Should Employers Do to Stay Compliant?

California recently joined a growing number of cities and states to pass a law that bans salary history questions. Prompted by concerns about gender- and race-based wage discrimination, the law is designed to prevent employers from using past compensation as a basis for current salary and benefits negotiations with job applicants. According to the U.S. Equal Employment Opportunity Commission (EEOC), 7,050 equal pay discrimination charges were filed against employers over a six-year time span. Employers can ensure compliance by removing all questions relating to salary history from job applications; revising screening and interviewing methods; and training hiring managers to ask the right questions.

March 2018

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LEGAL ISSUES

March 2018


Does Your State Ban the Box with Job Applications? What You Need to Know

As of September, more than 150 cities and counties and 29 states have adopted laws that limit what employers can ask job applicants. The “ban the box” legislation is designed to give individuals with a criminal history a fair chance at employment. The law, however, goes beyond requiring employers to remove a check box from application forms. It is important for businesses to become familiar with state and local laws, implement an attorney-approved, state-specific job application and modify hiring procedures to delay any criminal history inquiries until legally allowed.

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EEOC’s Background Check Guidance Suffers Loss in Texas Federal Court

In early February, a federal judge enjoined the Equal Employment Opportunity Commission (EEOC) and U.S. Attorney General from enforcing against the State of Texas the EEOC’s 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (the “Guidance.”) The summary judgment was granted for the State of Texas on the basis of the EEOC’s issuance of the Guidance without providing notice to the public and an opportunity to comment, as required under the Administrative Procedures Act (APA). The EEOC continues to press lawsuits against employers concerning the use of criminal records for hiring and other employment purposes.

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Kansas City, Missouri, Enacts Ban-the-Box-Plus Ordinance

In early February, the Kansas City, Missouri City Council passed restrictions on employers’ inquiries into, and use of, criminal record information. Effective June 9, 2018, employers may not inquire about an applicant’s criminal history until after it has been determined that the individual is otherwise qualified for the position, and only after the applicant has been interviewed for the position. Before the effective date, employers are advised to revise job applications, interview guidelines and policies; review and make necessary changes to the sequence and timing of asking about an applicant’s criminal history; and implement guidelines and documentation that comply with the new Ordinance.

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Can Employers Legally Give a Bad Reference

Stephen Shore, partner at Ogletree Deakins International LLP, said that, while some employers often may shy away from giving a bad reference out of concern for a law suit, someone going to court over this situation is very rare. At the same time, he added, it is in an employer’s best interest that an outgoing employee find re-employment as soon as possible and a positive review can help secure a job. Either way, offering a truthful, objective commentary about the employee that can be defended with evidence, if necessary, is the best way to arm up against lawsuits.

March 2018

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DRUG SCREENING

March 2018

Testing Applicants

This month, Maine has become the first jurisdiction in the nation to protect workers from adverse employment action based on their use of marijuana and marijuana products. The “Question 1 – An Act to Legalize Marijuana” (The Act) was approved in November by Maine voters, which would permit the recreational use, retail sale and taxation of marijuana. The anti-discrimination provisions of the Act prohibit employers from refusing to employ or otherwise penalizing any person age 21 or older based on that person’s “consuming marijuana outside … the employer’s … property.” The Act does, however, allow employers to prohibit the use and possession of marijuana and marijuana products “in the workplace” and to “discipline employees who are under the influence of marijuana in the workplace.”

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The True Cost of Marijuana Legalization

CNN Money recently reported that $18 billion in tax revenue could be created if marijuana were legalized nationwide. But the benefits – both in terms of crime rates, health and revenue – are under scrutiny. Bills on the federal level have been introduced in both the House and the Senate that would not only allow marijuana-focused businesses to use the banking system, but would also remove marijuana as a Schedule I substance. Doing so may have detrimental effects on disability and worker’s compensation claims, drug testing, rent cost and litigation. Supporting the legalization of marijuana could lead to, among other ill effects, inconsistent work quality, poor concentration and lack of focus, and lowered productivity or erratic work patterns.

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Opioids, Marijuana and Substance Abuse Issues Present Both Familiar and Groundbreaking Challenges to Employers

With the advent of marijuana decriminalization and expanded use for medicinal purposes, the legal and human challenges regarding the opioid crisis also are expanding. One of the most challenging issues is knowing how and when to address an employee who appears to be struggling with an addiction issue. If the employer does choose to confront the employee, who denies addiction and refuses assistance, clear expectations for behavior and performance should be made clear. Other considerations include the return of an employee after rehab is completed, struggling family members and recreational or medicinal use of marijuana. Employers can prepare by enacting an employee assistance program (EAP), reviewing benefits offerings, updating policies and involving employees in community service or educational programs around mental health wellbeing.

March 2018

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DATA PROTECTION & PRIVACY

March 2018

6 Steps to Put HR on Track for GDPR Compliance with Employee Data

Workday’s chief privacy officer has offered six steps to help human resource teams bring employee data up to speed with the upcoming General Data Protection Regulation (GDPR). The deadline for compliance is May 25, but as many as 50% of companies affected will not be fully prepared. Those affected should start by inventorying the personal data that they currently have on employees. Corralling this pertinent information into one system is critical, as is determining who will have access. Communicating with and training employees about the GDPR will help to ensure compliance and it is helpful for companies to keep in mind that compliance will not only boost productivity and performance, but increase trust with employees and customers.


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March 2018

Disclaimer: All information presented is for information purposes only and is not intended to provide professional or legal advice regarding actions to take in any situation. Nationwide Screening Services makes no representations for any products or services that are mentioned and accepts no responsibility for any actions or consequences taken without the guidance of a licensed attorney or professional consultant

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