July Newsletter 2021

Message from the Editor:

Welcome to another edition of ‘Inside Background Screening’ our new newsletter. Our goal is to bring to you cutting edge news and information about what is happening in the background screening world to help keep you informed and to position you to make the best possible hiring decisions.

We hope you enjoy ‘Inside Background Screening’ and that you will share your interest and thoughts with us.

Lorenzo Pugliano 


Personal Info to be Kept Off Court Documents in Michigan

A change in court rules will shield birth dates and other identifying information from public consumption. The effective date has been delayed by the Michigan Supreme Court from the original date of July 1, 2021 to January 1, 2022. The Michigan Supreme Court hopes the move will protect people named in court documents from too-public scrutiny as documents become increasingly available online. Personal identifying information, such as full name, Social Security number, driver’s license number and email address, will still be required when necessary, but it will not be shown to the public on printed paperwork or via computer kiosks. Employers and renters, however, could face challenges in definitively matching a potential hire or renter to court information.

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Illinois Employers Take Note, Human Rights Law Expanded to Require “Interactive Assessments” When Considering Conviction Records for Employment Screening Purposes

Senate Bill 1480 was enacted in Illinois, amending the Illinois Human Rights Act (IHRA) and making it a civil rights violation for an employer to consider “conviction records” in making an adverse employment decision unless a few specific exceptions have been met. These include 1. A “substantial relationship” between one or more of the previous criminal offenses and the employment sought or held, 2. the granting or continuation of the employment would involve an “unreasonable risk” to property or to the safety or welfare of individuals or the general public and 3. consider of such records is otherwise authorized by law. SB 1480 requires an employer to conduct an “interactive” assessment, which takes into account specific mitigating factors. In addition, the law requires certain notices, which could be incorporated into the pre-adverse and adverse action required under the Fair Credit Reporting Act (FCRA).

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New Arizona Law Eases Restrictions for Obtaining Occupational Licenses for Those with Criminal Histories

A new law in Arizona amends Arizona Revised Statutes (A.R.S.) Section 13-905 to allow persons convicted of certain criminal offenses the opportunity to set aside a prior conviction and seek a Certificate of Second Chance (Certificate). Second changes for employment opportunities, occupational licenses and housing are permitted through the law, but the state does not have a pure expunge- ment law completely erasing convictions from a person’s record. Amendments to the law, which take effect Aug. 27, 2021, permit those individuals who successfully fulfilled their probation or sentence conditions to apply to have the court set aside prior convictions and receive a Certificate that prevents being barred from obtaining required occupational licenses if otherwise qualified.

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Oregon’s Expungement Statute Gets a Much-Needed Overhaul

Oregon’s expungement statute that has been in place since 1972 has been updated with important changes that will be effective January 1, 2022. Waiting periods will now be aligned with other states and public safety data. In addition, non- convictions will no longer be blocked by convictions, “look back” periods of clear conduct will be aligned with the applicable waiting periods for convictions, the filing fee will be eliminated, the prosecutor objection timeline will be set at 120 days, the burden in any proceeding will be on the state to prove that the applicant’s “circumstances and behavior” create a “risk to public safety” by a “clear and convincing” standard of proof, and criminal history data providers may not report data that is more than 60 days old.

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New Law Could Cut Tennessee Expungement Fees To Zero

Nonprofit Just City has helped nearly 450 people clear their criminal records since 2015, which is often a complicated and costly process.
Starting July 1, new legislation passed by state lawmakers no longer requires a mandatory expungement fee and leaves it up to the discretion of the county clerk. Under the new law, if the clerk charges a fee, it can’t be any more than $100.

“A huge, huge barrier to knock down for people who are trying to get back into the workforce, back into stable housing, or back into school because criminal conviction can keep you from all those things,” said Spickler.
The new law also expands the kinds of Class C, D, and E felonies, most related to theft offenses, eligible for the expungement process.

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Criminal Background Check Litigation on the Rise: What Employers Need to Know

Despite predictions to the contrary, class action litigation over criminal background checks in the hiring process has continued to climb. In 2020, plaintiffs filed over 5,000 claims related to the Fair Credit Reporting Act (“FCRA”), a 10-year high.1 This article discusses important developing FCRA trends employers should be aware of, recommendations on how to ensure FCRA compliance, and reminds employers that although FCRA claims are on the rise, they must also ensure their background check policies comply with Title VII.

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Can Employees Use Legal Marijuana While at Work – Remote or at the Office?

Medical marijuana is legal across most states, but its use recreationally is hit or miss. Only a few, including Mississippi, Montana, New York, New Mexico, South Dakota and Virginia, have approved bills to legalize weed use. Research suggests that using marijuana the night before work does not impact performance the next day, but that doesn’t mean it can’t be detected in bodily fluids for 1 to 30 days after last use and even longer in hair. Changing marijuana laws are having a clear impact on matters involving employees and employers in court, with recent lawsuits indicating that workers and employers must be mindful of state laws regarding medicinal use of the drug. Additionally, with COVID-19 shuttering businesses and forcing employees to work remotely, the use of marijuana has increased. But those working in remote positions should treat their working hours as if they are spent in the office since employers could still prohibit marijuana use or possession during working hours.

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Alabama Legalizes Medical Marijuana While Allowing Employers Discretion as to Participating Workers

A new marijuana law called the Darren Wesley ‘Ato’ Hall Compassion Act was signed into law in Alabama, legalizing medical marijuana in the state. Patients must have a qualifying condition to be granted access to medical marijuana, but the law provides almost no employment protections for doing so and imposes no new obligations on employers. Several key provisions make it clear that employers may continue to prohibit marijuana use as part of drug-free workplace policies. For instance, employers can require employees to notify the employer if the employee possesses a medical cannabis card and can continue to receive workers’ compensation premium discounts for maintaining drug-free workplace policies pursuant to the Alabama workers’ compensation statute.

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California District Court Disability Claims Based on Failed Preemployment Marijuana Screen

The U.S. District Court for the Central District of California recently issued two reminders to employers: 1. An employer can condition an offer of employment on the completion of a preemployment drug screen, including a test for marijuana and 2. An employer is not under any obligation to engage in the interactive process before an applicant passes a pre-employment drug screen. The plaintiff in Espindola v. Wismettac Asian Foods, Inc. applied for and was offered a position with the company, but before he could start, he was required to schedule a preemployment drug screen for which he stated he would first need to take care of personal issues before doing so. Before he started work, the employee applied for a medical marijuana card in the state of Florida. He completed the required drug screen and the employment was terminated for failure to pass the test. He filed suit, alleging several violations of the California Fair Employment and Housing Act (FEHA).

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The Present and Future of Drug and Alcohol Testing – What Employers Should Know About the Iowa Supreme Court’s Recent Decisions

The Iowa Supreme Court recently provided employers some guidance in the form of written opinions in two cases pertaining to drug and alcohol testing of any part of the workforce. The court in Dix v. Casey’s General Stores, Inc., which focused largely on random/unannounced testing and an employer’s ability to designate “safety-sensitive” positions within its workforce that may be subject to such testing, specifically declined to hold that strict compliance with section 730.5 was required. Meanwhile, in Woods v. Charles Gabus Ford, the former employee who was fired after testing positive for methamphetamine alleged two violations of section 730.1. The court gave employers an example of what does and does not constitute substantial compliance with the testing statute, holding that sending the required termination notice by certified mail is in compliance with the statute, but since, in this case, it failed to inform the employee about the cost he would have to pay to obtain a confirmatory retest, the employer did not substantially comply.

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Fingerprinting requirement could bring hiring and retention headaches for providers

A state-mandated requirement to process a backlog of non-fingerprinted workers in Connecticut could exacerbate workforce challenges already experienced by long-term care employers there.

Healthcare workers hired in the Nutmeg State during the pandemic now have until July 20 to get fingerprinted for state-mandated background checks or risk being fired, according to a June 4 memo from the state’s Department of Public Health. Gov. Ned Lamont had suspended the requirement from March 23, 2020, to May 19, 2021, to facilitate the hiring of additional workers during the pandemic. The order reportedly affects as many as 3,000 care workers out of approximately 7,500 who were hired during the pandemic and still need to be fingerprinted.

“We are currently working with the state and assisting providers in accomplishing the fingerprinting by July 20,” she added.

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Comparison of Comprehensive Data Privacy Laws in California, Virginia and Colorado

The IAPP created a chart comparing the comprehensive data privacy laws in California, Virginia and Colorado. It provides an overview of each law’s requirements, highlighting their similarities and differences, to assist businesses looking ahead to a January 2023 operative date for Virginia’s Consumer Data Protection Act and the majority of the provisions in the California Privacy Rights Act and a July 2023 effective date for the Colorado Privacy Act.

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Colorado Privacy Act Becomes Law

On July 8, 2021, the state of Colorado officially enacted the Colorado Privacy Act following Gov. Jared Polis, D-Colo., signing the bill. In passing the law, Colorado became the third U.S. state, following California in 2018 and Virginia earlier this year, to enact comprehensive privacy legislation.

The substance of the law is not particularly groundbreaking. Those who have reviewed the failed Washington Privacy Act and the Virginia Consumer Data Protection Act will find it familiar. Regarding the basic framework, the CPA followed the trend of adopting a WPA-like controller/processor approach rather than a California Consumer Privacy Act-like business/service provider distinction.

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