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
| EMPLOYMENT SCREENING |
More Than Half of Employers Have Found Content on Social Media That
Caused Them NOT to Hire a Candidate, According to Recent CareerBuilder
Survey
A recent CareerBuilder survey revealed that 70 percent of employers are using
social networking sites to research job candidates, with 57 percent of them finding
content that caused them not to hire candidates. The IT and manufacturing
industries were in the lead, with 74 percent and 73 percent, respectively, being
more likely to explore social media pages for content before hiring. Employers
have said they are looking for information that supports their qualifications for the
job; a professional online persona; what other people are saying about the
candidate; and a reason not to hire the candidate. The survey also revealed that
that employers continue to monitor employees’ online presence even after they’re
hired.
Social Security Administration to Resume Social Security Mismatch Letter
Notification Program
The Social Security Administration (SSA) will restart its mismatch letter notification
program. Formally titled “Employer Correction Requests,” the SSA notifies
employers that the social security number (SSN) and name reported for one or
more employees does not match SSA records. The letters will instruct employers
to register for the Business Services Online (BSO) database, which contains the
Employer Report Status and includes steps on how to correct mismatches.
| LEGAL ISSUES |
Court Dismisses Background Check Lawsuit Against Sandoval, Laxalt
A judge recently dismissed a lawsuit claiming that Nevada Gov. Brian Sandoval
and Attorney General Adam Laxait did not do enough to enforce a law to expand
background checks on gun sales. The Background Act Check, approved by voters
in 2016, was never implemented because Laxait determined that it could not be
enforced as written. Known as Question 1, the law would require background
checks on private-party gun transfers. The FBI, however, said that it would not
conduct the screening because a “state cannot enforce how federal resources are
used.”
Evaluating and Challenging Standing in Fair Credit Reporting Act Actions
In Dutta v. State Farm Mutual Automobile Insurance Company, Dutta alleged that
State Farm was in violation of the Fair Credit Reporting Act when it failed to
provide him with notice of his Fair Credit Reporting Act (FCRA) rights and a copy
of his consumer report prior to denying his employment application. The district
court granted State Farm’s motion for summary judgement on the ground that
Dutta failed to establish an injury-in-fact and thus lacked standing. On appeal, the
Ninth Circuit agreed with the ruling. The case highlights the importance of
evaluating and potentially challenging a plaintiff’s standing in a FCRA action.
Playing a Losing Hand: District Court Dismisses FCRA Disclosure Claim
Against Casino in Absence of Concrete Injury
The District Court for the District of Nevada recently found that a plaintiff cannot
bring a “solely of the disclosure” claim in federal court when he or she has suffered
no actual harm separate from the perceived failure to properly format the
disclosure. In Williams v. TLC Casino Enters, the plaintiff alleged that TLC Casino
Enterprises violated the Fair Credit Reporting Act (FCRA) by obtaining a consumer
report on her without providing her with a “stand-alone document of a legal
disclosure.” The business moved to dismiss the complaint for lack of standing,
arguing that the claim amounted to “nothing more than a bare procedural violation
of the FCRA.” The court agreed with TLC Casino Enterprises.
Spokeo Strikes Again: Why Challenges to Standing Are Key
The Ninth Circuit affirmed in July the district court’s decision granting summary
judgment to State Farm to a putative Fair Credit Reporting Act (FCRA) class action
in Dutta v. State Farm Mutual Automobile Insurance Company. In the case, plaintiff
Bobby S. Dutta alleged State Farm violated section 1681b of the FCRA by failing
to provide him with a copy of his consumer report, notice FCRA rights and an
opportunity to challenge inaccuracies before being denied employment. The
decision highlights the importance of continuing to challenge standing at all stages
of a case.
| DRUG SCREENING |
More Employee Drug Use Equals More Issues for Employers
Quest Diagnostic’s most recent annual report showed a continued increase in the
positive rate of both legal and illegal drug use among both the general U.S.
Workplace and the federally mandated workforce. In 2016, 116 people died each
day from opioid-related drug overdoses, causing more than 504 billion in economic
costs. Employer PUD recently was ordered to pay a former employee $1.8 million
in economic and emotional damages for violating the Washington Law Against
Discrimination. The employee was legally prescribed medication for chronic
migraines. With drug use on the rise, it is more important now than ever for
employers to ensure compliance with state disability discrimination rules.
New Jersey Federal Court: Employer Need Not Waive Drug Gest for Medical
Marijuana User
Despite the legalization of medical marijuana in several states, the drug still
remains a Schedule 1 illegal substance. Employees, however, are left wondering
how the new laws affect rights under the Americans with Disabilities Act (ADA). For
instance, New Jersey’s Compassionate Use Medical Marijuana Act (CUMMA)
does not permit the use of medical marijuana in the workplace, as stated by the
federal District Court in a recent case. Even so, employers may want to consider
initiating the interactive process to determine if a reasonable accommodation or
alternative to its drug-free policy exists.
New Jersey Mandates Drug Testing of Direct Support Staff
Effective in May, applicants and employees working in any New Jersey
Department of Human Services funded, licensed or regulated program serving
adults with developmental disabilities are subject to mandatory drug testing. The
Stephen Komninos’ Law, New Jersey Public Law 2017, Chapter 238, which
applies to “direct care staff members” also includes volunteers. Drug tests will be
conducted for pre-employment, at random, or “for cause” or reasonable suspicion.
Poppy Seed Bagel to Blame For Tests Positive for Opiates During Labor
While in labor with her daughter, Elizabeth Eden was reported to child services
after opioids were found in her blood. The testing, which is used to “catch mothers
who use illegal drugs,” according to Dr. Judith Rossiter-Pratt, the obstetrics and
gynecology department chief at St. Joseph Medical Center, caused the new
mother to be held in the hospital for five days. She also was required to allow a
caseworker to check her home. The positive results, however, were found to be
due to a poppy seed bagel that was consumed for breakfast that morning.
A Closer Look at How the Opioid Epidemic is Impacting Employment
According to the Centers for Disease Control and Prevention, 115 Americans die
each day from drug overdose involving an opioid. The crisis affects various
aspects of people’s lives, from their families and communities to their workplaces,
leading to job loss and lower labor force participation. But data suggests that many
people taking opioids are employed, with nearly 85 percent prescribed for working
age people, paid for by private health insurance. A study suggests that the crisis
doesn’t stem from poor economic conditions, but rather can be blamed on a “selfinflicted
perfect storm that arose from a combination of newly availably opioids,
new attitudes about the importance of pain management, loose prescribing
practices and a lack of professional accountability.”
| IMMIGRATION & eVERIFY ISSUES |
Form I-9 Immigration and Employment Law Alert: The Time is Now for a
Proactive Audit
With Immigration and Customs Enforcement (ICE) workplace audits on the rise,
especially in California, employers are advised to make the I-9 form a top priority.
Under federal law, all employers in the United States are required to complete this
form to verify the identity and employment eligibility of new hires. Section 1 must
be completed at the time of hire and Section 2 within three business days. These
important documents must be retained for three years after the date of hire. More
than 50 percent, however, are shown to have errors, either being incomplete,
incorrect or outdated. Employers are advised to work with counsel to conduct a
proactive internal audit, ensuring HR representatives are well trained, and ensuring
electronic files are properly stored, among other items.
Baby It’s Cold Outside: ICE I-9 Audits Increase Over 100 Percent
With Form I-9 inspections by Immigration and Customs Enforcement (ICE)
increasing by more than 100 percent, employers are advised to make appropriate
compliance efforts to avoid monetary fines, branding exposure and other forms of
liability. In July, ICE released information to the press that its Homeland Security
Investigations (HSI) division had completed the second phase of a nationwide
operation, serving 2,738 I-9 Notices of Inspection (NOIs). The first phase saw
2,450 issued earlier this year. Businesses should take these NOIs seriously and
avoid waiving the three-day right to produce the I-9. Communicate carefully with
the agency and remain aware of the time constraints. When the audit has been
completed, it is important to create a post-NOI checklist that includes proactive
plans.
| DATA PROTECTION & PRIVACY |
The Practical Guide to the California Consumer Privacy Protection Act,
Part 1
The California Consumer Privacy Protection Act of 2018 (CCPA), designed to emulate
the European General Data Protection Regulation (GDPR), has U.S. companies
rushing to verify that their practices comply with the statute. Bryan Cave
Leighton Paisner has published a multi-part Practical Guide to the CCPA to help
address any confusion. In it, he shares that the CCPA requires that a business
informs Californians about whom it has collected information about the organization’s
privacy practices. Prior to the enactment of the CCPA, there were several
laws within the United States that required companies to publish a privacy notice,
but the CCPA applies to a broader group of companies, among other differences.
Employers should review existing privacy notices and verify compliance, identify
instances in which one many be collecting information about Californians and
draft a privacy notice that confirms with both the CCPA and other privacy laws
that may apply.
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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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