May 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


Philadelphia Expands Criminal History and Credit Screening Ordinances, Further Restricting Employment Decisions

Philadelphia’s Fair Criminal Record Screening Standards Ordinance (FCRSS) aims to protect job applicants and current employees, independent contractors and gig workers by prohibiting employers from inquiring into a candidate’s criminal history until after a conditional employment decision has been made. Employers must make an individualized assessment of the relationship between the conviction and the particular position, based on six factors. If an applicant or current employee is rejected, notification must be provided in writing, including the basis for the decision and a copy of the criminal history report. Specifically, the amendments include protection for current employees and applicants, reporting and consideration of employee pending criminal charges, extended coverage that protects gig workers and independent contractors and liquidated damages instead of punitive damages. Amendments to Philadelphia’s credit screening ordinance include procedural requirements that now align with the Fair Credit Reporting Act (FCRA) and expanded restrictions for law enforcement and financial institutions.

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DeSoto Votes in Favor of ‘Ban-the-Box’ Policy for Job Hiring

DeSoto City council recently approved a Ban-the-Box policy that, according to member Candice Quarles, “aims to remove job barriers for people with records.” The passing of the legislation comes during a time when Quarles said the nation must find more ways to increase work. DeSoto joins the City of Austin, as well as 36 states and more than 150 cities and counties in implementing hiring policies that aim to give everyone a fair chance at employment.

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The 12 Best Applicant Tracking Systems

Finding the best applicant tracking systems (ATS) is essential for any business to increase productivity and efficiency, provide a better candidate experience, open up access to multiple job boards, offer an improved employer brand, utilize valuable metrics and reports, and remain compliant with laws related to recruitment. An ATS allows businesses to standardize the recruitment process, but it’s important to understand what each system may offer. Twelve of the best include: Workable, Greenhouse, Lever, Teamtailor, Jobvite, ICIMs, Taleo, SmartRecruiters, JazzHR, Zoho Recruit, BreezyHR and Recruitee.

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Kentucky’s New ‘Reentry’ Law Gives Employers Clearance to Hire Workers with Criminal Backgrounds

Kentucky’s newly passed House Bill 497 creates a certificate program that will give employers relief from civil liability for hiring an ex-offender who was trained for a particular job. The bill aims to enhance the ability of formerly incarcerated people to get jobs once they are in the community to further aid in their rehabilitation and reintegration. Specifically, the law requires the Department of Corrections (DOC) to equip persons leaving incarceration with the necessary documents and paperwork to ease the process of reentry, while encouraging the DOC to provide support for incarcerated individuals in preparing and writing job resumes. Employers are not required to accept an applicant with a criminal record, but it does provide legal protection from negligent-hiring lawsuits if certificate of employability holders are hired.

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What All Illinois Employers Need to Know About Illinois’ New Background Check Law

Senate Bill 1480 (SB 1480) was signed into law in Illinois, amending the Illinois Human Rights Act to impose robust new restrictions and obligations on employers’ use of background checks in the state. Employers are no longer permitted from making adverse employment decisions based on an individual’s conviction record except in two circumstances: 1. There must be a substantial relationship between one or more of the previous criminal offenses and the employment sought or held and 2. The granting or continuation of the employment must involve an unreasonable risk to property or to the safety of welfare or specific individuals or the general public.

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How Fair Chance Hiring Can Benefit Your Business

The Fair Chance Act, which prohibits government agencies and their contractors from asking about criminal history prior to a conditional offer, should be considered for a number of reasons. First, enacting a Fair Chance policy provides a competitive edge, casting a wider next and attracting stronger candidates. It also provides a more diverse employee base, bringing new perspective and also improving creativity and innovation, and a greater return on investment. The National Employment Law Projects offers five tips for those preparing to draft a Fair Chance policy. These include avoiding stigmatizing language, including an equal opportunity statement on the application, only considering convictions related to job duties, adhering to Ban the Box laws, and removing self-reporting questions.

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New York Legalizes Recreational Marijuana, Expunges Former Pot Conviction

Legislation was signed in New York state that legalizes marijuana for adults and expunges the criminal records of people previously convicted of crimes that would be legal under the new law. According to Gov. Andrew Cuomo, the historic move is one that “rights the wrongs of the past by putting an end to harsh prison sentences, embraces an industry that will grow the Empire State’s economy.” It is estimated that the legislation could create up to 60,000 jobs and generate $350 million in annual tax revenue for the state. New Yorkers will be permit- ted to possess 3 ounces of marijuana and grow up to three mature pot plants at home, with a limit of six per household.

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Virginia Passes Bill to Protect Medical CBD Users

The Virginia Legislature has amended its medical marijuana law, protecting CBD users from employment discipline or discrimination. The law currently authorizes the use of cannabis oil for patients with specific medical conditions to now include workplace protections for state-authorized CBD users. Cannabis oil is defined as any formulation of processed cannabis plant extract, which may include oil from industrial hemp extract acquired by a pharmaceutical processor or a dilution of the resin of the cannabis plant that contains at least five milligrams of cannabidiol (CBD) or tetrahydrocannabinolic acid (THC-A) and no more than 10 milligrams of delta-9-tetrahydrocannabinol per dose.

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You Receive a Positive Drug Test Result for Marijuana – Your Employee or Applicant Says They Have a Medical Marijuana Card. What Happens Next?

With more than half of the states and some U.S. Territories permitting the use of marijuana to treat specific medical conditions, employers are left to wonder what happens following a positive test result. For the Department of Transportation (DOT), the use of state-authorized marijuana will not be permitted as a valid excuse for a federal drug test. In most cases, employers should utilize the services of a federally licensed Medical Review Officer (MRO) to review laboratory- confirmed positive drug test results before reporting back to the employer. If a plan is not already in place, now is the time to enact one by contacting the MRO, service provider or Third-Party Associate (TPA) to clearly understand the scope of their role and what requirements remain.

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New Marijuana Laws in New Mexico and Virginia

Effective in late June 2021, the New Mexico recreational marijuana law permits employers to take adverse employment actions for the possession or use of marijuana at work or during work hours. In addition, it also permits zero-tolerance policies that impose discipline or termination for a positive marijuana test result indicating any amount of THC. In Virginia, individuals over the age of 21 can lawfully possess up to an ounce of marijuana in the state, effective July 1, 2021, while the fate of recreational marijuana is yet to be determined in South Dakota.

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New York Assembly Introduces The Biometric Privacy Act

The Biometric Privacy Act has been introduced by a bipartisan group of New York legislators, which would provide for protection of consumers’ biometric information. Specifically, the bill would require entities that possess biometric information or identifiers to obtain specific consumer consent for collecting, capturing, purchasing or trading such information, and would be privately-actionable, as well. Entities that possess biometric information must develop written policies that are made available to the public, as well as inform consumers and receive written consent prior to the collection, capture, purchase or trade of the biometrics. The proposed bill provides for penalties of $1,000 or actual damages, whichever is greater, for negligent violations and $5,000 or actual damages, whichever is greater, for intentional or reckless violations.

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Millions of Dollars at Issue in BIPA Appeal to Seventh Circuit

The Seventh Court of Appeals soon will weigh in on whether a plaintiff involved in an Illinois Biometric Information Privacy Act (BIPA) lawsuit can “stack” alleged violations for a windfall recovery. The opinion in August’s Cothron v. White Castle was one of the first to directly address the theory of liability and damages. The language of the judge’s determination allows for the possibility that a BIPA violation occurs each and every time an employee is required to use the biometric device. Two legal groups representing the restaurant and retail industries filed amicus briefs in support of White Castle, urging the Seventh Circuit to overturn the district court’s ruling. In their brief, the amici assert that a “per scan” theory of liability would penalize employers for each and every instance in which alleged biometric information is collected “even when no employee has suffered any actual damage.”

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How to Confirm Your Privacy Program Complies With California and Virginia Privacy Obligations

Virginia has joined California in passing consumer privacy legislation with broad national reach. Effective January 23, 2023, the Virginia Consumer Data Protection Act (Virginia CDPA) and the California Privacy Rights Act (CPRA) significantly overlap regarding compliance obligations, however, there are some factors that set the Virginia CDPA apart. The recently passed California Consumer Privacy Act (CCPA) currently applies to entities that do business in California that have $25 million in annual gross revenue, annually handle the personal information of 50,000 or more consumers, households or devices, and derive 50 percent or more of their annual revenues from selling personal information. The CPRA applies to entities that do business in California and have $25 million in annual gross revenue, annually handle the personal information of 100,000 or more consumers and derive 50% or more of their annual revenues from selling or sharing personal information. Finally, the Virginia CDPA applies to all entities that “conduct business” in Virginia or “produce products or services that are targeted to residents” of Virginia and meet either of the following conditions: 1. Control or process personal data or at least 100,000 consumers or 2. Control the data of at least 25,000 consumers and derive over 50% or more of their gross revenue from selling personal data. Virginia’s legislation does not include a blanket revenue threshold.

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Virginia Enacts Consumer Data Protection Act

Virginia’s Consumer Data Protection Act (VCDPA) has been signed into law, making it the second state to codify a major privacy and data protection law. Effective January 1, 2023, the VCDPA applies to personal data so long as it is not “de- identified data or publicly available information.” It also extends its protection to Virginia residents “acting only in an individual or household context,” and not to “a natural person acting in a commercial or employment context.” Organizations conducting business in Virginia or those that target Virginia residents and who either annually process personal data of 100,000 or more Virginians or process personal data of at least 25,000 Virginians while deriving more than 50 percent of their gross revenue from the sale of personal data are subject to the VCDPA.

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