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.
EMPLOYMENT SCREENING NEWS
Another Busy Year for Employment Purposed Background Checks: What Happened in 2021?
With businesses remaining the target in Fair Credit Reporting Act (FCRA) class action lawsuits, employers should evaluate the background check process to ensure compliance with the FCRA, similar state fair credit reporting statutes and substantive employment laws. In addition, employers should consider a privileged review of their background screening practices to ensure compliance with ban-the- box and other laws impacting background screening. In Illinois, for example, an amendment to the Illinois Human Rights Act makes it more difficult for employers to reject applicants or terminate employees based on their conviction history, and Louisiana’s “Fair Chance” law prohibits employers from considering an arrest record or a charge that did not result in a conviction if the information was “received in the course of a background check.”
Federal Contractor Obligations Under Fair Chance Act
Federal contractors now must comply with the federal Fair Chance Act (FCA), which prohibits contractors from inquiring about a job applicant’s criminal background in certain cases in the initial stages of the application process. The FCA covers civilian agency contracts and defense contracts. It is not clearly defined how to determine whether a position is to perform work “related to” work under the federal contract, but once a contract has determined such, it must next determine whether the position falls into any of the three categories of positions exempted from the FCA.
New BLS Data Show Major Hazards Causing Occupational Fatalities in 2020
There were 4,764 fatal work injuries recorded in the United States in 2020, a 10.7% decrease from 5,333 in 2019. Of course, the number of fatalities is an absolute figure; while the working population continues to grow, the fatality rates continue to decline.
The largest workplace killer, in absolute terms, was “Transportation Incidents,” with 1,778 fatalities in 2020. Intentional workplace violence such as homicides and suicides resulted in 651 fatalities, and exposure to harmful substances or environments led to 672 worker fatalities in 2020, the highest figure since the series began in 2011, according to the BLS. Within this category, unintentional overdose from non-medical use of drugs accounted for 57.7 percent of fatalities (388 deaths), up from 48.8 percent in 2019. While neither workplace violence nor overdosing from drugs and alcohol are regulated by OSHA standards, employers should develop programs to address these very real hazards.
DRUG SCREENING ISSUES
Marijuana Laws Impacting Employers Spread Like a Weed in 2021: A Year in Review
Marijuana and drug testing policies continue to need review into the new year after a year of significant changes across the country. Connecticut legalized recreational marijuana use by adults 21 years and older, prohibiting employers from taking certain actions in the absence of clear policies and in New Mexico, recreational marijuana was legalized, but the law does not provide employment protections and expressly affords several protections to employers. Employers in New Jersey are largely prohibited from rejecting a job applicant who tests positive for marijuana and in New York, employers are prohibited from taking any action against someone for using recreational marijuana when not working. Philadelphia employers are now prohibited from requiring prospective employees to undergo testing for the presence of marijuana as a condition of employment, and Virginia has addressed both recreational marijuana and cannabis oil.
Change in the Wind: Time for Employers to Review Their 2022 Workplace Drug Testing Polices
Currently, 18 states and D.C. have fully legalized marijuana for recreational purposes, including Connecticut, New Mexico, New Jersey, New York, and Virginia, all of which legalized the use of marijuana for recreational purposes in the last year. In addition, 36 states have legalized marijuana use for medicinal purposes.
Some of these states prohibit employers from taking adverse employment actions against employees for legal off-duty marijuana use, while other states are considering creating or amending marijuana legalization laws to either include employment protections or expand the coverage of existing laws.
In the wake of these laws, many employers are considering removing marijuana from the panel of drugs tested for in their employment policies, at least in the absence of reasonable suspicion that the employee is using or impaired by marijuana on the job. It is important to note in this regard that marijuana can be detected in an individual’s system up to 30 days after use, so a positive marijuana test does not necessarily mean that the individual currently is impaired.
Amazon, Whole Foods Can Be Sued By Convicted Murderer Rejected For Delivery Job
In a Wednesday night decision, U.S. District Judge Valerie Caproni said Henry Franklin, convicted murderer, could pursue a proposed class action after being turned down for a grocery delivery job at Cornucopia Logistics, which serves Amazon and Whole Foods.
Amazon determined after a background check that Franklin had lied on his April 2019 job application by answering “no” when asked if he had a criminal record.
New York law bars employers from rejecting job applicants based on their criminal histories unless the crimes relate directly to the jobs sought, or hirings would pose an unreasonable risk to the public. Without ruling on the merits, Caproni said the defendants failed to show that either exception applied, adding that Franklin “has adequately alleged that he is rehabilitated and no longer poses a threat to the public. “She also said she was “sympathetic to defendants’ likely position that they do not want a convicted murderer delivering groceries to their customers’ homes.”
DATA PROTECTION & PRIVACY
Best Practices for the Virginia Consumer Data Protection Act
There are plenty of trends and guidance when it comes to consumer data privacy, and it is critical for employers to become familiar with those that affect their business. The Virginia Consumer Data Protection Act (VCDA) Working Group on the Joint Commission on Technology and Science released a report on best practices and recommendations, identifying 167 points of emphasis around the VCDA. The Federal Trade Commission (FTC) issued a new enforcement policy statement warning companies against deploying illegal dark patterns that trick or trap consumers into subscription services and the director of the Consumer Financial Protection Bureau (CFPB) released an advisory opinion to address false identity matching. The topic is also making headlines. Washington has set a new record for the number of data breaches and ransomware attacks and in New York, Senate Bill S2628 was signed for an Act that requires employers who engage in employee electronic monitoring to provide notice to employees.
Four More Consumer Data Privacy Bills Introduced in US
The topic of consumer data privacy bills is trending, and lawmakers introduced new bills in Florida, Washington, Indiana, and the District of Columbia. Similar to the Colorado and Virginia laws, Washington state’s Washington Foundational Data Privacy Act (HB 1850) contains an annual registration requirement. Indiana’s bill appears to borrow concepts from the CPRA and Colorado/Virginia models, while the District of Columbia’s bill is based on the Uniform Personal Data Protection Act drafted by the ULC.
Beware of Hidden Pitfalls: Biometric Privacy Guidance for California Employers
California employers who operate under the assumption that there are no applicable legal requirements that must be satisfied when using biometrics in their day-to-day operations are mistaken and California Labor Code § 1051 demonstrates otherwise. The California Consumer Privacy Act of 2018 (CCPA) and its soon-to-be successor, the California Privacy Rights Act of 2020 (CPRA), can result in criminal penalties for noncompliance. Labor Code § 1051 bars employers that require employees or job applicants to furnish their fingerprints from disclosing that fingerprint biometric data to any third party. Employers in the state should first ensure that their biometrics service providers and vendors are completely precluded from accessing any fingerprint data collected by the employer through the service provider/vendor’s technology and maintain robust policies and protocols to prevent inadvertent disclosures of employee fingerprint data to any third parties. Employers also must maintain robust security measures to safeguard employee fingerprint data.
Practical Guidance for Minimizing FTC Liability Exposure When Using Facial Biometrics
Employers who continue to operate under the assumption that there is no need to maintain any type of biometric privacy compliance program when using facial recognition software are extremely vulnerable to liability exposure by the Federal Trade Commission (FTC). Companies should take the steps now, even if they are not governed by any biometric privacy regulation, to build a privacy compliance program. The FTC is becoming increasingly aggressive when it comes to policing the misuse of facial recognition. The FTC guidance, “Facing the Facts: Best Practices for Common Uses of Facial Recognition Technologies,” draws upon three core privacy and security principles: privacy-by-design, simplified consumer choice, and transparency.
MOTOR VEHICLE RECORDS
The Top 4 FMCSA Violations of 2021
Businesses should do themselves a favor going into the new year by always being ready for an audit by the Department of Transportation. The results of the past year’s violation data indicate that of every 100 carriers who get audited, less than 5 pass without a violation. The top 4 violations of 2021 include: 1. Allowing a driver to operate with a suspected/revoked CDL, 2. and 3. Failing to implement an alcohol and/or drug testing program (or random testing program), and 4. Allowing a driver with more than one CDL to drive a CMV. Other areas of noncompliance include using an unqualified driver, employing a driver who was disqualified from holding a CDL, and not keeping inquiries into the driver’s employment record in the driver qualification file.
E-VERIFY & IMMIGRATION STATUS
What’s in a Name? Resolving Form I-9 Document Discrepancies
While the idea of writing one’s last name on a form seems like an easy task, complications on an I-9 form may arise when names appear differently on various official documents. Rules relating to last name include: entering the full “legal” last name; including both names when an employee has two last names or a hyphenated last name; including the name in the last name field and “unknown” in the first name field when the employee has only one name; avoiding writing periods; and excluding name suffixes. Employees are instructed to include their full “legal” first name, as well as both names when two names exist. The middle initial is defined as “the first letter of your second given name, or the first letter of your middle name, if any.” The “other last names used” field should be considered in its former label: “maiden name,” changed to avoid the possibility of discrimination and to protect the privacy of transgender and protected individuals.
Completing the Form I-9 in 2022? Here’s what you need to know.
With roughly 11 million job openings and 7 million people looking for work in the US, human resource professionals can look forward to another frenetic hiring season in 2022, filled with the typical (and predictable) onboarding challenges and demands along with the added complication of a global pandemic that refuses to go away.
And when it comes to hiring challenges and conundrums, none is more acute than completing the error-prone and time sensitive Form I-9 employment eligibility verification process. During the past three years, the government has implemented a significant number of new I-9 and E-Verify related policies and procedures, due in large part to COVID-19 and its varying effects on both the hiring process and the underlying documents needed to prove identity and work authorization.
At the same time, we’ve also witnessed several new immigration-related policies from the Biden administration that in some cases, make meaningful changes to how employers verify work authorization of their newly hired employees.
If you’re new to HR or would simply like a refresher, read below for my “top 10” things to know for I-9 compliance in 2022!