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The House Committee on Financial Services took a big step towards prohibiting employers from using credit reports as part of the employment background check, unless required by law or for a national security clearance. On July 11th the house passed legislation that would do just that, the bill will also mirror ban the box laws…
State of New Mexico has signed a Ban the Box law that would cover private employers in the state. On April 3, 2019 New Mexico Governor Michelle Lujan Grisham signed into law two bills that would prohibit private employers to ask on the employment application about any previous criminal convictions. The second would allow applicants…
The New York City Council passed a bill last month that would prohibit employers in the city from testing job applicants for Marijuana (THC) as a condition for employment. The bill introduced as No. 1445 passed by a 41 to 4 vote moves to reduce consequences for legal marijuana use, since the city in March urged the state to legalize recreational marijuana. This new law would tie into the city’s Fair Chance Act passed in 2015 which prohibits employers from asking or inquiring about previous criminal activity until a conditional job offer has been extended.
The third district court of appeals delivered a precedential opinion supporting the dismissal of a presumed consumer class action where the plaintiff failed to plead a concrete injury-in-fact stemming from an alleged technical violation of the Fair and Accurate Credit Transactions Act of 2003. The court’s decision had to do with Kamal v. J. Crew Group, Inc., — F.3d –, 2019 WL 1087350 (3d Cir. Mar. 8, 2019).
A California court has certify that five million Walmart applicants may bring a lawsuit against Walmart for violating the Fair Credit Reporting Act (FCRA). The Plaintiffs allege that Walmart violated federal and state law by not properly acquiring consent by the applicant to conduct the background check, and providing proper federal and legal notices and disclosures that must be provided to said applicants.
When an employer plans to take adverse action based on information provided in a background check, they must engage in the pre-adverse action process. This means that the employer must send a copy of the background screening report and FCRA “Summary of Rights” to the applicant, allow them ample time to review the report, and identify any inaccuracies or errors.
Employers are still being held liable for violating the Fair Credit Reporting Act (FCRA). When it came down to “providing a clear and conspicuous disclosure in writing in a standalone document before the report has been pulled that a consumer report may be obtained for employment purposes; and obtaining authorization in writing from a consumer for whom a report will be procured,” Stanford University was found to not be in compliance with the rules set by the FCRA due to their improper disclosure forms.
The San Francisco Board of Supervisors passed an amendment to the city and county Fair Chance Ordinance (FCO) in April 2018. The official law took effect on October 1, 2018.
The new amendment broadened the scope of the ordinance to cover all employers with five or more employees. The Fair Chance Ordinance mandates employers to follow strict procedures pertaining to applicants’ and employees’ conviction and arrest record(s).
When employers elect to utilize results of an employment background check in making a hiring decision, they must follow federal law to ensure they are not violating consumer protection rights. This is especially important when rejecting candidates due to background screening results.
The Fair Credit Reporting Act (FCRA) specifically states that employers must do the following:
Provide a copy of the background screening report
Provide a written description of the applicant’s rights under the FCRA before taking adverse action.
TSA Considers Removing Security Checkpoints At Small Airports
The Transportation Security Administration (TSA) is discussing the possibility of the removal of passenger security checkpoints at over 150 small to medium-sized airports across the United States. Due to the terrorist attacks that occurred on September 11, 2001, TSA’s presence has been felt in every airport nationwide. If implemented, this new proposal could drastically change a policy that has been enacted for nearly two decades.
The 50th state in the union has passed a law prohibiting employers from inquiring about applicants’ previous wages earned. On Thursday, July 5, 2018, Hawaii Governor David Y. Ige signed into law Senate Bill 2351, which generally prohibits Hawaii employers from asking applicants about their compensation history. This SB 2351 legislature, like so many others nationwide, found that pay disparity persists between men and women who do similar work. It was also determined that in 2015, the gender wage gap in Hawaii stood at $0.16 on the dollar. This means that a full-time working female earned $0.84 to every $1.00 earned by their male counterpart.
Attorney General Maura Healey is now enforcing the state of Massachusetts’ “Ban-the-Box” law, which prohibits employers in the state from inquiring about applicants’ previous criminal convictions on the employment application.
The investigation of Ban-the-Box violations is aimed at more than 70 businesses from the Cambridge and Boston area that implement a paper job application.
In 2015, a job applicant challenged Target Corporation’s disclosure form and filed a putative class action FCRA lawsuit known as Just v. Target Corporation, Case No. 15-cv-04117. This case claimed that Target Corporation’s addition of certain statements in their disclosure and authorization form are not factually related to the disclosure consent under the FCRA.
The trend is now complete on the West Coast with Washington joining both California and Oregon with implementing a statewide “ban the box” statute on behalf of the Fair Chance Act. On March 13, 2018, Governor Jay Inslee signed into law the Fair Chance Act for the state of Washington. The new HB 1298 law will prohibit covered employers from asking job applicants about their previous criminal convictions and/or arrests before they deem them “otherwise qualified.”
Maine Implementing Recreational Marijuana Laws
On February 01, 2018, Maine became the first jurisdiction in the nation to implement protections for employees from adverse employment action based on their use of marijuana. Voters approved the recreational marijuana laws (IB 2015, c. 5, “An Act to Legalize Marijuana”) on November 08, 2016. This is scheduled to take full effect on January 30, 2017. Maine is now the ninth state to implement recreational marijuana laws); however, the Maine legislature imposed a moratorium on the retail sales and taxation of marijuana until February 2018 to resolve remaining issues with the Act.
Ban the Box Laws Finally Adopted by Virginia
Virginia has recently been added to the list of states who have adopted ban the box laws on state employment applications. On January 19, 2018, the Virginia Senate voted 23 to 16 to prohibit the State from asking on employment applications about previous criminal arrests and/or convictions.
A large janitorial service, Diversified Maintenance Systems, LLC, has recently been hit with a class action lawsuit brought on by the Equal Employment Opportunity Commission (EEOC) for refusing to hire African-American candidates and reprimanding opposing employees. The EEOC alleges that Diversified Maintenance Systems, LLC subjected their existing African-American employees to racial slurs and other discriminatory practices, and retaliated against them for their opposition.
Ban the box is spreading like wildfire!
Fair Chance Hiring laws have been passed in almost every single state from the east coast to the west coast. Employers really need to grasp the entire scope of these laws:
When can an employer inquire about previous criminal activity?
Are the proper disclosure and notices being provided to the applicant?
How are employers handling the pre-adverse / adverse action process and individualized assessments?
Governor Jerry Brown approved Assembly Bill 1289 on September 28, 2016 and confirmed that it would add new laws to the Public Utilities Code to further regulate Transportation Network Companies. The new California law, AB 1289 that takes effect Sunday, January 1, 2017 will require criminal background checks for drivers of Transportation Network Companies (TNC), regardless of whether they are an employee or independent contractor. A Transportation Network Company (TNC) is defined as “organizations and corporations that provide prearranged transportation services for compensation using an online-enabled platform to connect passengers with drivers using their personal vehicles.” Examples of TNCs include Uber and Lyft.
Philadelphia was one of the first cities to adopt the ban-the-box law back in 2012 (Fair Criminal Records Screening Standards), which affected employers with 10 or more employees. The law specifically stated that employers may conduct a criminal background check after the first initial interview, and any time before that would be in violation (this includes the employment application) of the new law. In 2015, amendments were made to the Fair Criminal Records Screening Standards, which changed the law significantly
On December 30, 2010 President Obama extended the Child Safety Pilot Program. This program allows organizations that work with children to request fingerprint background checks for all potential volunteers. The screening is performed by utilizing the FBI’s nationwide fingerprint database. According to Adam B Schiff (Democrat-California) who has sponsored the bill, more than 90,000 background checks have been conducted through the pilot program. Six percent of the cases found that volunteers had a criminal history concern. In July of 2010 the House of Representatives passed (HR1469) also sponsored by Adam Schiff. The Bill would build on the pilot program where both Democrats and Republicans agree has been highly successful in creating a permanent protocol to provide nationwide background checks.
Rep. Darrell Issa (Republican – California) introduced a bill on Monday that would institute background checks for Washington D.C. applicants. Due to the increase in “outrageous abuses” in local D.C. government, Rep. Issa, who also chairs the House Oversight and Government Reform Committee, would like to follow the model used at the federal level.
A new bill prohibiting employers from discriminating against an individual based on a history of unemployment has been introduced to the House of Representatives. The Fair Employment Opportunity Act of 2011 states that it shall be an unlawful practice for an employer to:
Effective January 1, 2012, California will be the seventh state to pass law limiting employers from using credit reports for employment purposes. Assembly Bill 22 states that employers may request credit reports only if the applicant is being considered for one of the following:
California Governor Jerry Brown has signed into law Senate Bill 1236, known as the Employment Acceleration Act of 2011. This bill will prohibit the state, or a city, county, or special district, from requiring an employer—other than one of those government entities mentioned—to use an electronic employment verification system (a federal system that allows employers to electronically verify workers’ employment authorization with the federal government; name was changed to E-verify in 2007), except when required by federal law or as a condition of receiving federal funds.
Illinois is considering a new law that would require online dating sites to clearly and conspicuously disclose to its users that they conduct criminal background checks on all users. The bill was introduced by Michelle Mussman (Democrat – Schaumburg) and would also require online dating services to provide a safety awareness notification to all members for safer dating practices. The bill was introduced as HB 4083 and specifically states that if an internet dating site doesn’t provide criminal background checks on it users, a disclosure needs to be made available to all users explicitly explaining that criminal background checks are not being conducted. The proposed background checks that would be conducted by these online dating websites would consist of the following:
California SB 530 was introduced by Assemblyman Roger Dickinson and would prohibit state and local government from requiring job applicants to disclose previous criminal history until later in the hiring process. This law follows a nationwide trend of other states and cities who have adopted similar legislation known as “Ban the Box”, which prohibits employers from asking about previous criminal history on an employment application.
A former background investigator employed by United States Investigations Services (USIS) has pled guilty to a charge relating to his falsification of work on background investigations of federal contractors and employees. Brian T. Rapier worked on a contract for the U.S. Office of Personnel Management (OPM) between June 2009 and April 2010. It’s reported that in that time frame four dozen reports where Rapier claimed to have interviewed sources and/or reviewed records regarding a person being considered for direct employment or contract work never happened. This information comes from Bill Miller, a spokesman for the U.S. Attorney’s Office.
Republicans on a House Education and Workforce subcommittee criticized the Equal Employment Opportunity Commission (EEOC) for the EEOC’s relentless attack on employers they feel are using background checks to discriminate against job applicants. At an oversight hearing on June 10, panel chairman Rep. Tim Walberg (R-Mich.) said that the EEOC’s guidance on employers’ use of arrest or conviction records issued in 2012 “has made it more difficult for employers to ensure the safety of their customers and co-workers.”
One out of every six crimes occurs in the workplace and homicide is the second leading cause of workplace death in the U.S.
National Credit Verification Service reports that 25% of the MBA degrees it verifies on resumes are false.
72% of shrinkage is due to employee theft.
34% of all job applications contain lies.
30% of small business failure is caused by employee theft.