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Compliance Clips for October 2020

CONSUMER REPORTING

Helpful Compliance Guidance for End Users of Consumer Reports
You may already know that the federal Fair Credit Reporting Act (FCRA) is the primary legislation regulating the procurement and use of a consumer report (a background screening report from A-Check Global, for example). Adding even more complexity to compliance focus—regulatory compliance for domestic consumer reporting also includes state and jurisdiction consumer reporting laws with additional procedures and disclosures. This topic can become very confusing, very quickly. Please know we’re always here to help. A-Check developed a handy checklist to help you gauge your organization’s current level of regulatory compliance for the end use of consumer reports in the hiring process.
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I-9 AND E-VERIFY

Extension: Form I-9 and Requirements in response to COVID-19
An additional update is available in light of ongoing COVID-19 efforts. The in-person requirement for the Form I-9 is temporarily suspended if your company is closed or taking other precautions due to COVID-19. The general rule is that an employer must undertake a physical inspection of the document(s) presented by the employee for section 2 purposes.

UPDATE: Because of ongoing COVID-19 precautions, it has been announced that remote I-9 document review has been extended for another 60 days; the expiration date for these accommodations is now November 19, 2020.

The government has suspended the in-person and physical inspection of the document(s) presented by the employee when completing the Form I-9. During this time, an employer can view the document(s) presented by the employee via Zoom or Skype, for example.
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Florida
The Florida Governor signed a new E-Verify law. Beginning January 1, 2021, Florida public employers, private contractors, and subcontractors, must register with and use E-Verify to confirm work eligibility of new hires.
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SUBSTANCE ABUSE TESTING

Arizona
A measure to legalize marijuana in Arizona officially qualified for the November General Election ballot as Prop. 207. Under the measure, adults could possess up to an ounce of marijuana at a time and cultivate up to six plants for personal use. The initiative also contains several restorative justice provisions such as allowing individuals with prior marijuana convictions to petition the courts for expungement. We’ll keep an eye on this one and report back to you after the elections.
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Substance Abuse Trends Reported by Quest Diagnostics
U.S. General Workforce drug positivity hits 16-Year High in 2019. Quest Diagnostics—a trusted A-Check drug screening partner and leading provider of diagnostic services—recently released their Drug Testing Index™ analysis of more than nine million workplace drug test results. As Quest Diagnostics reports, even prior to COVID-19, workplace drug positivity rates were trending in the wrong direction. Now, with many Americans under higher stress levels as they continue to juggle remote work schedules, childcare and homeschool responsibilities, and even frustration from ongoing social isolation, it stands to reason that there may have been negative impact on general health and well-being during these recent months.
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AS A REMINDER: At A-Check, we’re happy to help implement a drug screening program that meets your evolving needs—or make adjustments to the program you’re already running with us. Just give us a call at 877-345-2021 and ask to speak with someone on your Client Relations team.

BAN THE BOX AND CRIMINAL HISTORY DISCLOSURE

Hawaii
Effective September 15, 2020, Hawaii amends its Ban the Box law to fortify protections for individuals with old and/or relatively minor conviction records. The law prevents most private sector employers from considering felony convictions older than seven years, and misdemeanor convictions older than five years. However, an employer making employment decisions may inquire about and consider an individual’s criminal conviction record, provided the conviction in question has a logical relationship to the position’s duties.
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North Carolina
State jobs will be more open to people with criminal records, due to a new executive order signed by Democratic Gov. Roy Cooper. Starting in November, 2020, the state will no longer ask prospective job applicants to check a box saying whether they have a criminal record. This law will apply only to state government jobs, not private companies or local governments. The elimination of that question on job applications has been a longtime goal of Ban the Box supporters in North Carolina.
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SALARY HISTORY

Maryland
Maryland prohibits employers from relying on job applicants’ prior pay. The new salary history ban and wage range notice requirement takes effect October 1, 2020. This new law will 1) prohibit employers from requesting or relying on job applicants’ prior pay history to make decisions about employment or initial pay in most circumstances; and 2) require an employer to provide an applicant, upon request, with the wage range for the job applied for. The new law amends Maryland’s existing Equal Pay for Equal Work (EWEW) law, and will apply to all private, state, and local government employers in Maryland.
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A Look at Salary History Bans Already in Place
State and local governments are increasingly adopting legislation to prohibit employers from requesting salary history from job applicants. For your reference, here’s a great running list of states and localities that have legislation in place.
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COVID-19

Updated COVID-19 Guidance from the EEOC
The EEOC recently updated guidance on the Americans with Disabilities Act (ADA) and the Coronavirus pandemic. This new information expands their prior guidance on how the ADA applies to the current pandemic. In a question and answer form, this guidance covers a number of important issues surrounding COVID-19 and the workplace, including: the right for an employer to ask employees entering the office if they have COVID-19 symptoms, the right for an employer to report employees with COVID-19 or associated symptoms to appropriate personnel, the right for an employer to require a temperature check, and much more.
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Questions? We’re here to help!

Featured

U.S. General Workforce Drug Positivity hits 16-Year High in 2019

Quest Diagnostics—a trusted A-Check drug screening partner and leading provider of diagnostic services—recently released their Drug Testing Index™ analysis of more than nine million workplace drug test results. According to their findings, the rate of workforce drug positivity hit a 16-year high in 2019. For example, positivity rates in the combined U.S. workforce increased in urine drug tests, climbing to 4.5%, the highest level since 2003—and more than 28% percent higher than the thirty-year low of 3.5% recorded between 2010 and 2012.

Here are a few key index findings from Quest:

  • Marijuana positivity continues to top the list of most commonly detected substances across all U.S. workforce categories, reaching 3.1% in 2019. This of course is led by positivity in recreational use states. And we hear you . . . it’s hard enough keeping track of evolving legalization legislation. Here’s a website with comprehensive information that may be a good resource in addition to our own compliance updates each month.
  • Specific regions of the United States, particularly the West and Midwest, experienced increases in positivity for cocaine and methamphetamine in 2019. Positivity increased to as high as 0.28% in these areas. 
  • Methamphetamine positivity continues to increase across multiple specimen types. General U.S. workforce categories reached positivity a positivity rate of 0.19% in 2019, when analyzing results from urine, hair, and oral fluid testing.
  • When looking across classifications based on the North American Industry Classification System (NAICS), the Retail Trade category has been identified by Quest as holding the top spot for industry-specific positivity since 2015.
  • And, since 2015, the post-accident positivity rate has increased each year in the general U.S. workforce, reaching 9.1% in 2019.
  • More Quest insight can be found online within their Drug Testing Index.

Will COVID-19 prove to further these trends?

As Quest Diagnostics reports, even prior to COVID-19, workplace drug positivity rates were trending in the wrong direction. Now, with many Americans under higher stress levels as they continue to juggle remote work schedules, childcare and homeschool responsibilities, and even frustration from ongoing social isolation, it stands to reason that there may have been negative impact on general health and well-being during these recent months.

This combination of external forces can very easily lead to worsening heath issues and the opportunity to perhaps abuse alcohol or drugs—even among those who would not normally be inclined to do so. It’s not simply an issue of those at risk relapsing into prior addictive behavior.

Let’s work together for the continued safety of your workplace

Based on the potential for abuse due to COVID-19 related anxiety and strain, it is critical to continue your focus on workplace safety, as well as all employee health concerns.

Your company may be operating with a remote workforce, and you may be in the fortunate position to welcome new employees to the team over the coming weeks and months. Screening employees for substance abuse before they begin working for you—or if you have begun to see sharp declines in remote productivity among current employees—can greatly help ensure you’re doing all you can to keep a safe workplace and healthy, productive team members.

We welcome the opportunity to discuss your options, what you currently might have in place, or to help you build an effective, compliant drug screening program for your company.

Featured

Compliance Clips for September 2020

CONSUMER REPORTING

FCRA Class Action Activity
With nearly 5,000 FCRA cases filed in 2019, it’s no wonder everyone at A-Check Global is so committed to compliance. Case law decisions surrounding the Fair Credit Reporting Act (FCRA) continue to spotlight the critical need for compliance in background screening. Let’s use ongoing class action suits as an opportunity to see activity trends and best practice suggestions that can help your company remain compliant.
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I-9 COMPLIANCE

A Further Extension: Form I-9 and Requirements in Light of COVID-19
An additional update is available in light of ongoing COVID-19 efforts. The in-person requirement for the Form I-9 is temporarily suspended if your company is closed or taking other precautions due to COVID-19. The general rule is that an employer must undertake a physical inspection of the document(s) presented by the employee for section 2 purposes.
UPDATE: Because of ongoing COVID-19 precautions, it has been announced that remote I-9 document review has been extended for another 30 days; the expiration date for these accommodations is now September 19, 2020.
The government has suspended the in-person and physical inspection of the document(s) presented by the employee when completing the Form I-9. During this time, an employer can view the document(s) presented by the employee via Zoom or Skype, for example.
READ MORE

I-9 Compliance Advice for Employers
And while we’re on the subject of I-9, we think there’s always time for a useful Top 10 list. Here’s a quick look at best practices for how to stay compliant with I-9 regulations.
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SUBSTANCE ABUSE TESTING

Marijuana Legalization in November Elections
Along with all the other upcoming election activity, here’s a quick read on states voting on marijuana legalization in November: New Jersey, Mississippi, and South Dakota. Additional states—Arizona, Montana, Nebraska, and Oklahoma—are all working toward ballot measures for the upcoming November election.
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New York
New York continues to lead the way with employee-friendly laws, regulations, and court rulings, including their approach to marijuana in the workplace. Employers should proceed with caution when terminating an employee who fails a drug test for marijuana. A New York employer was recently sued for discharging an employee for a positive marijuana test. They were sued for disability discrimination based on the employee disability and failure to accommodate a disability.
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AS A REMINDER: At A-Check, we’re happy to help implement a drug screening program that meets your evolving needs—or make adjustments to the program you’re already running with us. Just give us a call at 877-345-2021 and ask to speak with someone on your Client Relations team.

BAN THE BOX AND CRIMINAL HISTORY DISCLOSURE

Boston University
A new player in the Ban-the-Box movement: Boston University is hoping to diversify its applicant pool by no longer requiring disclosure of criminal history on grad school applications. Recent research has highlighted that knowing applicant criminal history doesn’t help predict or reduce crime on campuses, and additionally, can have the negative effect of discrimination against people with criminal records.
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Montgomery County, MD
A new bill is being introduced in Montgomery County, MD, to expand the scope of a Ban the Box law already in place, and would prohibit criminal background checks on job applicants until after a conditional job offer has been made. If passed, it would also apply to businesses with fewer than 15 employees. Further discussion planned for September 15.
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Pennsylvania
Pennsylvania’s Senate Bill 637 was recently signed, removing some job licensing barriers to Pennsylvania workers with a criminal record. It is reported that one in five Pennsylvanians needs an occupational license to work. Boards and commissions are now not allowed to deny someone employment based on their criminal history unless their prior offenses are related to that particular line of work. Additionally, if boards and commissions do have stipulations about granting a job license to someone based on certain prior criminal offenses, that information will have to be publically available. However, sexual offenders will still not be permitted to work as healthcare providers.
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FDIC Restrictions Loosened
The FDIC has loosened a number of restrictions that previously prohibited the hiring of bank personnel with criminal histories. The Federal Deposit Insurance Corporation (FDIC) published a final rule regarding Section 19 of the Federal Deposit Insurance Act, which restricts hiring at FDIC-insured depository institutions. Changes include the narrowing scope of crimes subject to Section 19 and the circumstances under which the FDIC’s written consent is required for a financial institution to make a hiring decision. This will allow more applicants to obtain work at FDIC member banks without having to go through the Section 19 application process.
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SALARY HISTORY

Philadelphia
Starting September 1, 2020, Philadelphia employers will no longer be able to ask job applicants about their salary history, or require job applicants to disclose their salary history during the application process. Applicants may choose to disclose their wage history voluntarily, but an employer cannot use that information in setting initial wages. Likewise, Philadelphia employers may not retaliate against applicants who refuse to disclose their wage history.
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