September 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


Rhode Island Amends Pay Equity Law, Bans Salary History Inquiries, And Requires Pay Scale Disclosures

Effective Jan. 1, 2023, Rhode Island’s Salary History Ban provides that an employer may not “rely on the wage history of an applicant when deciding whether to consider the applicant for employment” or “in determining the wages the applicant will be paid by the employer, upon hire.” In addition, employers may not seek the wage history or “require that an applicant’s prior wages satisfy minimum or maximum criteria as a condition of being considered for employment.” Prior wages may be considered after an initial offer is made to justify increasing compensation offered to the applicant so long as “wage history is voluntarily provided by the applicant for employment, without prompting from the employer.”

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Another Round of Illinois Equal Pay Act Amendments

Several amendments have been made to the Illinois Human Rights Act, the Illinois Business Corporation Act of 1983 and the Equal Pay Act of 2003. In March 2021, such amendments require private employers with more than 100 employees in the state to obtain an “equal pay registration certificate” from the Illinois Department of Labor (IDOL). A second set of amendments in June 2021 include further substantive additions, deletions and clarifications, such as the removal of the penalty of 1% of gross profits for non-compliance. Other relevant aspects of the June amendments include: EEO-1 report submissions are still required, Equal Pay Certificate Compliance deadlines are to be set by the IDOL, an expansion of employee demographic data submission, certification of compliance now to include “other relevant laws,” an expansion of wage comparison factors, a full deletion of whistleblower protections, access to application data and information, and a 30- day grace period to correct an inadvertent failure to file an application or to cure deficiencies in an application for the Certificate.

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California Court Ruling Could Complicate Background Checks

A recent appellate court case, All of Us or None v. Hamrick, could complicate employment background checks. The court in the case ruled that neither an individual’s birthdate nor driver’s license number can be used to identify someone when searching a court’s electronic criminal index. The plaintiffs in the case argue that Riverside Superior Court violated the California Rules of Court by allowing people to use an individual’s date of birth or driver’s license number as search criteria when searching the court’s criminal records. The trial court found no violation, but the appellate court reserved, holding that the rules prohibit the court from allowing searches of its electronic criminal index through use of an individual’s birthdate or driver’s license number. This removes the ability to narrow searches, possibly leading to less reliable information for employers conducting background checks.

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Nevada Now Among States Requiring Employers to Disclose Wage Ranges & Banning Salary History Inquiries

Nevada employers will soon be required to provide wage or salary range or rate information to new hire applicants and to employees who apply for promotions or transfers. Effective Oct. 1, 2021, employers and employment agencies in the state must proactively provide the “wage or salary range” or “rate” for a position in specific situations. The new law restricts private employers and employment agencies from inquiring into an applicant’s salary history. A private enforcement mechanism is discussed in each statute and civil action may be brought to district court against the alleged violating party. Employers may also be subject to administrative penalties.

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Louisiana Enacts Law Impacting Employer Consideration of Applicant Criminal Histories

House Bill 707 was passed by the Louisiana State Legislature, prohibiting discrimination in employment based on criminal history records and providing criteria for employers making hiring decisions in conjunction with criminal history records. After being signed by the governor, HB 707/Act No. 406 went into effect Aug. 1, 2021. The bill specifically states that “unless otherwise protected by law, when making a hiring decision, an employer shall not request or consider an arrest record or charge that did not result in a conviction, if such information is received in the course of a background check.” The law does seem to allow employers to consider conviction records when they might be relevant to the job in question if produced by a background check, as well as consider arrest-related information if obtained from a source other than a background check.

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Vehicle Owners and Employers Have Affirmative Duty to Ensure Their Drivers Are Licensed, California Court of Appeal Holds

The California Court of Appeal has held that an employer and a vehicle owner were liable under theories of negligent hiring and negligent entrustment, respectively, when each failed to conduct a reasonable inquiry into whether a driver was properly licensed to drive who was subsequently involved in a motor vehicle accident. In McKenna v. Beesley et al, the plaintiff pedestrian was struck by a truck that had run a red light. The driver was employed by Mr. Beesley’s company, Smoothreads, Inc., and was operating his vehicle without a valid driver’s license or auto insurance coverage.

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District Court Says Supreme Court Ruling on Standing in Class Actions Does Not Apply to Privacy Claims

In TransUnion LLC v. Ramirez, the Supreme Court reversed a Ninth Circuit decision certifying a class of 8,185 individuals as to whom TransUnion had erroneously placed an Office of Foreign Assets Control alert into their credit files in violation of the Fair Credit Reporting Act (FCRA). The Court clarified that all class members, not just representative class members, must demonstrate Article III standing and held that “only those plaintiffs who have been concretely harmed by a defendant’s statutory violation may sue that private defendant over that violation in federal court.” In addition, the Court held that only those class members whose erroneous credit files had actually been disseminated to “third party businesses” in response to credit inquiries had standing.

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Pennsylvania Appeals Court Determines State’s Medical Marijuana Act Includes a Private Right of Action for Employees

The Superior Court of Pennsylvania has determined that employees can sue their employers for claims under the Pennsylvania Medical Marijuana Act (MMA). In Palmiter v. Commonwealth Health Sys., Inc., an employee working as a medical assistant filed a lawsuit in the Court of Common Pleas of Lackawanna County against her employer after she was fired for testing positive for marijuana on an employer-directed drug test. The court’s decision is a good reminder for employers that there is a private right of action under the MMA and an employee can bring a wrongful termination claim when an employer terminates their employment or even fails to hire them due to their off-premises use of medical marijuana.

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What Do I Do With My Workplace Drug Policy Now That Cannabis is Legal in Illinois and My Employees Are Remote?

Recreational marijuana has been legalized in Illinois and continued remote work has left employers wondering how they should update their existing drug testing policies. The state’s Cannabis Regulation and Tax Act states that employers can still apply zero tolerance and drug free policies to all legal use of cannabis. Remote offices should be included in the company’s definition of the “workplace” to avoid confusion. Employers could approach the issue by drafting their employee drug policies to regulate cannabis use by time instead of place. Either way, a well-drafted employee drug policy is the key to maneuvering the new law.

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New Mexico Workplace Drug Policies Evolving

With New Mexico’s legalization of recreational cannabis, previous marijuana use is no longer considered a disqualifying factor for getting a job with the Sante Fe Police Department. The state has become the latest to regulate recreational cannabis. The city police department, along with other employers in the state, have started to relax their drug testing polices. Employers can still forbid the use of cannabis on the job with zero-tolerance policies and can still take action against those who are in violation of company rules. Those policies may vary by position, with those in safety-sensitive positions still tested randomly for marijuana.

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Top 5 Things to Know When Drug Testing in Iowa

Drug testing in Iowa is considered friendly, meaning that it is a pro-drug testing state, but some exceptions do apply, such as random testing only permitted within the confines of an employer’s written policy. According to Iowa Code Ann. 85 16-2(b), there is a presumption of intoxication if the employee has a positive drug test at the time of or immediately following an injury. Medical marijuana is not permitted in the state, but medical cannabidiol is permitted. The law contains guidelines for employers pertaining to marijuana use in the workplace and employers are not required to permit or accommodate the use, consumption, possession, transfer, display, transportation, distribution, sale or growing of marijuana in the workplace. Regarding testing, the state allows for hair, blood, urine, or oral fluid/saliva to be tested.

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Nearly Half of U.S. Adults Have Tried Marijuana

Marijuana use is clearly on the rise, with 49 percent of those responding to a Gallup poll stating that they have tried the drug. Gallup’s annual Consumption Habits poll, conducted in July, first asked Americans whether they smoked marijuana, with generational patterns explaining the increase in its use over the last five decades. Combined 2015-2021 data shows that 20 percent of millennials smoke marijuana, compared with just 11 percent of Gen Xers, 9 percent of baby boomers and 1 percent of traditionalists. In addition, the poll has found 16 percent of men, versus 9 percent of women, smoke marijuana; just three percent of Americans who attend religious services weekly, and six percent who attend monthly, say they smoke marijuana, while 19 percent who seldom or never attend religious services do; 22 percent of political liberals and 15 percent of Democrats regularly use marijuana, compared with six percent of conservatives and seven percent of Republicans; and the rate of marijuana consumption is five percent among those with a postgraduate education, compared with 14 percent of those with a four-year college degree or less.

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NYC Businesses Beware: A New Biometric Law Has Changed the Data Privacy Landscape

New York City’s Biometric Identifier Information Law, effective July 9, 2021, imposes two broad mandates on commercial establishments regarding data privacy. The first prohibits covered establishments from selling, leasing, trading, sharing in exchange for value, or “otherwise profit(ing)” from biometric identifier information. The second provides that if biometric identifying data is collected, used and retained, a notice must be posted to consumers advising them of these activities. The law applies to any business in the city that is operating a “place of entertainment, a retail store, or a food and drink establishment.”

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Welcome to the Privacy Party, Ohio: State Legislature Proposes Comprehensive Data Privacy Legislation

House Bill 376, “The Ohio Personal Privacy Act,” aims to bring privacy law protections to Ohio consumers by giving them control over their personal data. Businesses that either 1. Have an annual gross revenue generated in Ohio that is greater than $25 million, 2. In one calendar year process personal data of at least 100,000 consumers or 3. In one calendar year generate over 50 percent of its gross revenue from the sale of personal data all are subject to the bill’s requirements. Various types of information and data are exempt. The bill provides similar consumer rights as the California Consumer Privacy Act of 2018 (CCPA), the Virginia Consumer Data Protection Act (VCDPA) and the Colorado Privacy Act (CPA) and, if enacted, will allow the following rights for consumers: Right to Know, Right to Access, Right to Deletion, Right to opt-out of sale, and Right to Nondiscrimination.

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Colorado Privacy Act: What Businesses Need to Know

Colorado is now the third state to enact a comprehensive consumer data privacy law with the passage of its Colorado Privacy Act (CPA). Effective July 1, 2023, the CPA doesn’t contain surprising obligations, but it does not impose a revenue threshold, nor does it exempt nonprofits or expressly provide an entity-level exemption for organizations regulated by the Health Information Portability and Accountability Act (HIPAA). In addition, the CPA expressly exempts individuals acting in the commercial or employment context, including job applicants. The CPA applies primarily to “controllers” and “processors,” both of which appear in the General Data Protection Regulation (GDPR). Businesses should act now to determine their compliance obligations, including by performing a comprehensive data inventory, reviewing and updating internal policies, and reviewing their contracts with vendors and other service providers. Public-facing privacy policies also should be updated.

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