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
Amendments to New York City’s “Ban the Box” Law Bolster Its Protection of Applicants and Employees
New York City’s Fair Chance Act has been amended, expanding protections for applicants and employees with criminal histories. The New York City Commission on Human Rights updated its Legal Enforcement Guidance to clarify the effect of the amendments. Specifically, the expanded protections now apply to current employees and independent contractors, not just applicants. Criminal history now includes pending arrests and pending criminal accusations. Employers cannot ask about or consider “non-convictions” and must now conduct background checks in two stages to ensure that the decision-maker does not have access to criminal information prior to a conditional offer. In addition, Article 23-A factors continue to apply when an employer is assessing an individual’s past criminal history and also extend FCA’s protection to pending cases. The Fair Chance Process is now more comprehensive, as well.
Does Your State Prohibit Asking Salary History?
Nevada and Rhode Island have joined existing state and local governments that prohibit employers from asking potential employees about their salary histories. Although each of the statutes vary in their details, 25 laws exist across the country in some form or fashion. They are detailed here:
Evolution of ‘Ban the Box’ Laws and Why Your Standard Background Check Forms May No Longer Be Sufficient
Simpler “Ban the Box” laws now are being replaced with Fair Chance laws designed to take into account the expansion of criminal history laws that not only prohibit inquiries into criminal history on employment applications but also dictate the procedures that must be followed before an employer can assess a candidate ineligible for employment. Under the Fair Credit Reporting Act (FCRA), employers intending to take an adverse employment action against individuals based on a background check report must first notify the candidate of their intent to do so and provide a copy of the individual’s report and a summary of their rights under the FCRA. The employee must then be provided with a reasonable period of time to review the report and identify inaccuracies or submit additional information for consideration before action is taken. In some jurisdictions, however, employers are also required to conduct written individualized criminal history assessments and to provide those written assessments to candidates along with their pre-adverse action notice.
One Billion Verdict Returned In Nassau County Crash That Killed UNF Student
A Nassau County jury returned a $1 billion verdict in the death of a local University of North Florida student killed in a 22-vehicle crash in 2017 on Interstate 95.
Troopers said Connor Dzion, 18, was stopped in traffic from a semitruck crash on Labor Day weekend near State Road 200 when another truck hit him from behind, killing him.
The attorney for Dzion’s parents said it was the result of distracted driving and illegal trucking practices.
The jury agreed the company did little to nothing toward safety and background checks before letting their driver behind the wheel. Both companies remain in business but have not paid out the sums ordered.
New York Man Sues Checkr, Lyft and Uber Over Botched Background Check
Checkr Inc. has been accused of violating the Fair Credit Reporting Act (FCRA) by reporting to Uber Technologies Inc. and Lyft Inc., that the plaintiff was listed as deceased on Social Security Administration’s (SSA) Death Master File. The plaintiff in the Eastern District of New York complaint seeks damages for harms stemming from the prolonged and inaccurate background check that Uber and Lyft were allegedly obligated to provide him with a copy of, but did not.
FMCSA Launches New Training Provider Registry
Effective Feb. 7, 2022, only registry-listed training providers will be eligible to train pre-CDL drivers under the Federal Motor Carrier Administration’s (FMCSA) newly released Training Provider Registry. Training providers must self-certify that they meet the requirements listed in the registration rule and overall training must encompass both behind-the-wheel and theory training. In addition, driver-students must pass both knowledge and skills tests that include all maneuvers and operations practiced during behind-the-wheel instructions. Training providers must create or use a login.gov username and must submit particular details to access the registry.
ResumeBuilder.com Survey Reveals 32 Percent of Job Applicants Lie on Their Resumes
According to the report, 1 in 3 Americans admit to lying on their resumes. Forty-six percent of respondents admit to lying about their years of experience, while 44 percent lied about their educational background. Comparably, 80 percent of respondents who lied on their resumes say they were hired for that position. Despite the fact, 41 percent of job seekers who lied had their employment offer withdrawn after Their new employer discovered the fabrication.
Survey results indicate that people who earn $100,000 or more annually are more likely to lie when applying for a job.
The study also shows that a high percentage of job applicants who lie belongs to the IT and finance industries. Healthcare workers and educators appear to be the most truthful job candidates.
Maine’s New ‘Ban-the-Box’ Law: When Can Employers Inquire About Criminal Histories?
Main has enacted a new “ban-the-box” law that limits employer inquiries into an applicant’s criminal history. “An Act Relating to Fair Chance in Employment” prohibits employers from including criminal history inquiries in an application. Employers can, however, engage in such inquiries during an interview or once the employer has determined that the applicant is otherwise qualified for the position. Effective Oct. 18, 2021, the new law does have a few exceptions to its inquiry limitations. Employers that are found to have violated the new law may be “subject to a penalty of not less than $100 nor more than $500 for each violation.”
Pre-Employment Drug Testing Laws by State
Every new year brings changes to marijuana laws. While the federal law has not changed its classification of marijuana as a Schedule 1 substance, New York, New Jersey, New Mexico and Connecticut have recently legalized recreational marijuana.
With so many states (37 at last count on July 29, 2021) legalizing medical and/or recreational marijuana, the pros and cons of drug or alcohol testing job applicants has become something of a hot topic. Marijuana accounts for nearly half of all positive drug test results.
The question that you might be grappling with is: Do I really want to limit my talent pools by requiring that every prospective employee be tested? Because you can’t pick and choose; if you have a drug testing policy, it has to apply to all applicants, not just a select few. Check out our table for a high-level overview of state laws for applicant drug testing.
Commission Temporarily Waives Requirement for Employers to Conduct Physical Examinations in Connection with Cannabis Drug Testing
In August, the New Jersey Cannabis Regulatory Commission (the “Commission”) published its first set of Personal Use Cannabis Rules regarding recreational cannabis use for adults age 21 and older under the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA). The rules address licensing standards for cannabis businesses and equity and safety issues in the workplace. They state that, until the Commission develops certification standards, employers are not required to conduct physical evaluations of employees for cannabis drug testing purposes. The rules do not, however, provide additional clarity on the employment protections and employer drug testing requirements enacted under NJCREAMMA.
Connecticut Becomes the 20th Jurisdiction to Legalize Recreational Marijuana
This summer, Connecticut Governor Ned Lamont signed a bill that legalized recreational marijuana use by adults 21 years and older. Employers do not, however, have to tolerate employees being under the influence of marijuana while they are working and they may prohibit employees from using and possessing marijuana during work hours and while performing their job duties or on company premises. In instances when a drug-free workplace policy is made available to employees prior to enactment, the employer can take action against an employee or potential employee who uses recreational marijuana or tests positive as part of reasonable suspicion and random drug testing. The law does provide exemptions for some industries or positions.
Marijuana Legalization Rundown: Recent Judicial Decisions
Cannabis laws are changing regularly across the country, with a few significant changes taking place in various states throughout the past year. In California, the U.S. District Court for the Central District of California granted summary judgment to the defendant employer on claims brought under the Fair Employment and Housing Act (FEHA). In Michigan, the United States District Court for the Western District of Michigan held that a Black employee whose employment was terminated for a positive drug test for marijuana had plausibly pled his allegations of employment discrimination sufficient to overcome the defendant employer’s motion to dismiss. Meanwhile, in Pennsylvania, the Superior Court affirmed that the state’s Medical Marijuana Act (MMA) creates an implied private right of action for medical marijuana users to sue their employers for discrimination.
The Illinois Court Issues Ruling on Statute of Limitations in BIPA Class Actions
The Illinois Appellate Court has held that a one-year limitation period governs actions brought under sections 15(c) and (d) of the Biometric Information Privacy Act (BIPA), while claims under sections 15(a), (b), and (e) are subject to the catch -all five-year limitations period. The ruling in Tims v. Black Horse Carriers, Inc., will likely be appealed to the Illinois Supreme Court, but has the potential to be a game-changer for BIPA class action litigation. The plaintiffs’ bar will likely push for the five-year statute of limitations when pursing class-wide relief.
DATA PROTECTION & PRIVACY
Employee Data Privacy Laws U.S.—Are You Up to Speed?
Data privacy issues have an impact on most HR activities, including data processing, recruitment, performance monitoring, and the handling of references. This is especially true in this modern age of digital and technological advances. As a human resources manager it is vital that you implement systems and processes in your company to safeguard sensitive employee data, ensuring they comply with state, local and international data protection laws.
In this post we will take a look at GDPR data regulations and how the Data Protection Act affects employers in the United States. We will also discuss best practices for protecting employee personal data and tips for ensuring privacy compliance at all levels of your company.