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 NEWS
Survey Reveals Americans Want Employers to End Discrimination Against
Job Seekers With Criminal Backgrounds
According to a Kelly Services survey, seven in 10 Americans say employers
should eliminate blanket-bans that automatically reject job seekers with minor, non -violent criminal offenses on their record. The results of the survey were released to the public in April, demonstrating that Americans want companies to end discriminatory hiring practices and policies, and offer second chances that are good for business and the national economy.
Restrictions on Hiring Personnel with Criminal Histories in the Insurance Industry
To comply with Section 1033, passed as part of the Violent Crime Control and Law Enforcement Act of 1994, insurers must determine whether the role of a
prospective employee or agent will involve the “business of insurance” and, if so, whether that individual has been convicted of a crime involving dishonesty, breach of trust or a violation of Section 1033.
LEGAL ISSUES
The Latest in Multi-Jurisdictional Compliance with Employment Application Laws
Colorado, Maine, and Des Moines, Iowa, are the latest jurisdictions to pass Ban the Box laws prohibiting employers from asking about an applicant’s criminal history at the application stage of the hiring process. A growing number of jurisdictions also are passing laws prohibiting employers from inquiring about applicants’ prior wages or salaries and there is a growing set of pay transparency or wage disclosure laws requiring employers to include the expected salary or a compensation range for a position in job postings.
DRUG SCREENING ISSUES
Addiction and Substance Abuse in a Post-Covid Era: Navigating Stormy Employment Waters
According to the May 2021 Mental Health Index report, the use of alcohol and other drugs during the course of the pandemic has increased. Nearly one-third of Americans reported increased alcohol consumption since the start of the pandemic and 29 percent of drug users reported an increase in drug use during the same period.
A quarter of those surveyed reported their drug and/or alcohol use made it difficult to complete job duties and responsibilities. SUD – commonly called “addition” – can qualify as a disability under the Americans with Disabilities Act (ADA) so employers may have an obligation to accommodate individuals with SUD.
District of Columbia Provides Employment Protections to Cannabis Users
The Cannabis Employment Protections Amendment Act of 2022 has been signed by Washington, D.C., Mayor Muriel Bowser. The law prohibits most employers from taking adverse action for off-duty cannabis use. The Act also amends the District of Columbia’s medical cannabis law to require most employers to treat a qualifying patient’s use of medical cannabis for a disability in the same manner as it would treat the legal use of other controlled substances prescribed by or taken under the supervision of a licensed health care professional. Narrow exemptions do apply.
The Importance of Workplace Drug Testing
The Cannabis Employment Protections Amendment Act of 2022 has been signed by Washington, D.C., Mayor Muriel Bowser. The law prohibits most employers from taking adverse action for off-duty cannabis use. The Act also amends the District of Columbia’s medical cannabis law to require most employers to treat a qualifying patient’s use of medical cannabis for a disability in the same manner as it would treat the legal use of other controlled substances prescribed by or taken under the supervision of a licensed health care professional. Narrow exemptions do apply.
Cannabis Testing in the New Jersey Workplace Just Got a Little Less Hazy
In early September, the New Jersey Cannabis Regulatory Commission (CRC) issued interim guidance for employers regarding the employment protections passed for cannabis users as part of last year’s New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA). The Guidance discusses an employer’s right to maintain a substance-free workplace and offers practical guidance for employers struggling with how to ascertain whether an employee is impaired during working hours.
California Privacy Rights Act (CPRA): Big Changes for Employers with Employees
in California in 2023
Under the California Consumer Privacy Act (CCPA), the only obligations that covered employers have are to provide a notice of collection and to reasonably safeguard personal information due to a partial exemption for information collected in the context of employment. The exemption under the CCPA will expire on January 1, 2023, when the California Privacy Rights Act (CPRA) becomes effective. Under the CPRA, California employees of covered employers will have increased rights and their employers will have increased compliance obligations. In preparation, employers should assess the locations of personal information and their current records
retention policies and schedules. In addition, they should review current CCPA notices of collection, current policies and procedures related to privacy and cybersecurity, and any contracts they maintain with any vendors that process personal information about their employees.
Marijuana Users Scoring New Employment Protections
Although marijuana use is now fully legal in 18 states and the District of Columbia, and an additional 18 states allow use for medical reasons, the drug remains illegal at the federal level, is still covered by the Drug-Free Workplace Act and is still prohibited under Department of Transportation testing requirements. States continue to enact two primary means of
protecting workers who use marijuana off-duty and for medical reasons.
Nevada Supreme Court Affirms Termination for Off-Duty Recreational Marijuana Use
The Nevada Supreme Court has upheld a lower court’s decision to dismiss a complaint by an employee who was fired for testing positive for marijuana on a post-accident drug test.
The employee in the case asserted that the positive drug test was due to his use of recreational marijuana at home, that he was not intoxicated or impaired at work, and he had complied with state law. The court rejected the plaintiff’s claims.
Don’t Let the Term Breathalyzer Fool You
According to Hound Labs, a company that has developed a unique cannabis breathalyzer test, in order to successfully measure THC in breath, the technology underlying the test must measure in parts per trillion because THC molecules appear in such low concentrations in breath and degrade very quickly. In comparison, an alcohol module appears in concentrations of parts per thousand and degrades more slowly. A key difference between an alcohol breathalyzer and the company’s cannabis breathalyzer is that the latter is able to self-calibrate, making it easy to ensure accuracy and optimal performance. The single-use
cartridge with a built-in mouthpiece provides security benefits and allows for on-site determination of results and future lab confirmation.
High Times Ahead for Employers in California
Assembly Bill 2188 was signed in California, making it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment based upon a person’s use of cannabis off the job and away from the workplace and an employerrequired
drug screening test that has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine or other bodily fluids. An employer can still refuse to hire an applicant based on a scientifically valid preemployment drug screening conducted
through methods that do not screen for non-psychoactive cannabis metabolites. The bill does not permit an employee to possess, be impaired, or use cannabis on the job, nor does it affect the rights or obligations of an employer to maintain a drug- and alcohol-free workplace
Protections for Employers Under the New Mississippi Medical Cannabis Act
The Mississippi Medical Cannabis Act, signed in February 2022, offers several protections for employers. Employers are not required to pay for or reimburse any individual or entity for costs associated with the medical use of cannabis. With Mississippi being an at-will
state, no employer is required to permit, accommodate or allow the medical use of cannabis or modify a job for anyone who engages in the medical use of cannabis. Having a certification to use medical marijuana does not prohibit or limit the ability of any employer from establishing
or enforcing a drug testing policy, nor does it establish a private right of action for an employee to sue his or her employer for any adverse employment action.
Rhode Island Legalizes Cannabis for Recreational Use
Signed May 25, 2022, the Rhode Island Cannabis Act grants adults aged 21 and older the right to possess and grow certain amounts of cannabis for recreational use. The law allows employers to maintain and enforce a drug-free workplace policy that prohibits employees from using or possessing cannabis in the workplace and from being under the influence of cannabis while they are performing work, including remote work. It does not require employers to accommodate the medical use of cannabis in any workplace. Employers in the state cannot terminate or take any disciplinary action against an employee based solely on the employee’s private, lawful use of cannabis outside the workplace, unless it can be proven that the employee has worked, or is working, under the influence.
Workplace Drug Testing: What You Need to Know
Employers have a responsibility to maintain a workplace free from the hazards posed by workers under the influence of illegal drugs. Although some argue that workplace drug testing infringes on an employee’s rights, implementing a policy can help create a safer workplace, protects the business from theft and fraud, reduces potential legal liability, reduces employer turnover, helps employees get treatment and increases productivity. While testing can increase operational costs, the benefits seem to outweigh skipping out on this crucial step.
IMMIGRATION STATUS & eVerify
DHS Proposes New Framework for Remote I-9 Inspection and Seeks Additional Public Comment
The Department of Homeland Security (DHS) has published a rule on the remote I-9 inspection flexibilities for employers that were implemented as a result of the pandemic. Within it, the agency has proposed a new framework for remote inspection and seeking public comment on the potential benefits and burdens of these alternative document inspection protocols.
Form I-9 Expired List B Documents Must Be Updated by July 31, 2022
Employers must be sure that employees who presented an expired List B Identity document between May 1, 2020, and April 30, 2022, provide an unexpired document that establishes their identity by July 31, 2022, to update their Form I-9, Employment Eligibility Verification. The Department of Homeland Security recommends that employees present the replacement of the actual document that was expired or a different List A document (which establishes both identity and employment authorization) or a different List B document (which establishes identity only).
ICE Seeks Permanent Remote I-9 Document Review
According to a Notice of Proposed Rulemaking, employers are now permanently allowed to review Form I-9 identification documents remotely. If finalized, the rule would create a framework under which the U.S. Department of Homeland Security could “pilot various options, respond to emergencies similar to the Covid-19 pandemic, or implement permanent flexibilities upon a specific determination of to
level of security.”
DATA PROTECTION & PRIVACY
Are You Ready for 2023? New Privacy Laws to Take Effect Next Year
Organizations should review privacy practices and prepare for compliance with five new state omnibus privacy laws. Those five laws that address the processing of personal data include 1. The California Privacy Rights Act (CPRA), effective January 1, 2023, 2. The Virginia Consumer Data Protection Act (CDPA), effective January 1, 2023, 3. The Colorado Privacy Act (CPA), effective July 1, 2023, 4.
The Connecticut Act Concerning Personal Data Privacy and Online Monitoring (CTPDA), effective July 1, 2023, and the Utah Consumer Privacy Act (UCPA), effective December 31, 2023.
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