Compliance Clips for March 2021

CONSUMER REPORTING

Philadelphia
Effective February 20, 2021, Philadelphia has expanded legislation to prohibit covered employers from using an applicant’s credit-related information in connection with employment decisions or considerations. The amendment expands the scope of covered employers to include financial institutions and law enforcement agencies operating in Philadelphia, which were previously exempt from the law’s requirements. Once in effect, law enforcement agencies and financial institutions (such as banks, insurance companies, and brokerage firms) may not rely, in whole or in part, on credit-related information to take adverse employment action related to job applicants or employees, unless exceptions apply (obtained under federal or state law, for example).
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Nationwide
There’s no question, Fair Credit Reporting Act (FCRA) case filings continue to increase year over year. Here’s a link to 10 FCRA case decisions from 2020 that all clearly illustrate the importance of accuracy, disclosure, and compliance with credit reporting laws. Take a read and then let A-Check know if you have any questions about your background screening program.
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A Friendly Reminder about FCRA Requirements
As you’re well aware, when an employer uses a third party (like A-Check) to conduct background checks, there are FCRA compliance requirements that must be followed. For your convenience, here’s a very quick checklist of key requirements:

  • Ensure there is a permissible purpose for performing a background check on an applicant/employee, based on their role and responsibilities.
  • Provide clear written notice in a stand-alone document to the applicant/employee that a background check will be conducted, and the resulting information will be used to make an employment decision.
  • Obtain the applicant/employee’s written consent to perform a background check and/or investigative report.
  • If the background check information results in an adverse action decision, a notice of pre-adverse action, along with a copy of the background check results and a copy of the Summary of Your Rights Under the Fair Credit Reporting Act, must be presented to the individual.
  • Allow the individual at least five business days to dispute the information in the background check
  • Upon a final decision, and if adverse action is taken, provide the individual with a final notice of adverse action.

We’re focused on helping you remain compliant, and always welcome your questions.

I-9 AND E-VERIFY

Ongoing Extension: Form I-9 Requirements in response to COVID-19
The in-person requirement for the Form I-9 is temporarily suspended if your company is taking 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, remote I-9 document review has been extended; the expiration date for these accommodations is now MARCH 31, 2021.

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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SUBSTANCE ABUSE TESTING

Nationwide Cannabis Bills in 2021
After the 2020 election where we saw five states pass marijuana legalization measures, now more than a dozen state legislatures are considering bills this year for medical and/or adult-use cannabis legalization.
Adult-Use Legalization Efforts:
Connecticut, Florida, Maryland, Minnesota, New Mexico, New York, North Dakota, Texas and Virginia
Medical Legalization Efforts:
Alabama, Kansas, Kentucky, Nebraska, and Tennessee
Both Medical and Adult-Use Legalization Efforts:
Indiana, South Carolina
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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

Illinois
Illinois is one of several states that have passed a Ban the Box law—called the Job Opportunities for Qualified Applicants Act—which prohibits most employers from asking about criminal history until the later stages of the application process. Under the law, employers may not ask about or consider an applicant’s criminal history until they have 1) determined the applicant to be qualified for the position, and 2) notified the applicant of being selected for an interview, or if there is no interview, extended a conditional job offer to the applicant.
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COVID-19

COVID-19 Rapid Infection At-Home Collection
Although Coronavirus (COVID-19) has dramatically impacted the business landscape worldwide, it is also encouraging to now see employers focused on safely and gradually welcoming their workforces back to the office. Depending on your company’s return to office policies, requiring employees to test negative for COVID-19 prior to an office return may be a viable complement to office cleaning and sanitation practices. We want to quickly let you know that A-Check is here to help by providing COVID-19 testing and surveillance solutions through A-Check’s medical partner networks. Through A-Check’s partnership with Quest Diagnostics, we offer an at-home collection option to help diagnose whether your employees currently have COVID-19.
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DATA PRIVACY

Washington State
An updated Washington state privacy act, SB 5062, was re-introduced in early January with revisions to consumer rights regarding their personal data, controller responsibility, and more. The bill will apply to companies conducting business or offering products and services to Washington consumers, controlling or processing data for 100,000+ consumers, and adds nonprofit corporations, air carriers, and higher learning institutions to the list.
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Oklahoma
In legislation news we’re watching: Oklahoma joins numerous other states in proposing consumer data privacy legislation. The Oklahoma Computer Data Privacy Act (OCDPA), House Bill 1602, was filed in January for review and commentary. If passed, the OCDPA would require that certain companies obtain prior consent before collecting and selling consumer data. The bill also gives Oklahoma residents a mechanism for requesting that businesses disclose what information they have about them, as well as the right to request deletion of that information. The bill also provides a private right of action for Oklahoma residents for which residents may seek injunctive relief, actual damages, and statutory damages up to $7,500 for intentional violations.
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Virginia
Virginia House of Delegates voted 89-9 to pass a privacy bill, potentially making Virginia the next state behind California to enact a comprehensive data privacy law similar to the California Consumer Privacy Act (CCPA). Now, going one step further, Virginia’s Consumer Data Protection Act (CDPA) is now expected to be signed into law by Governor Ralph Northam, and would take effect on January 1, 2023. Companies already complying with the CCPA have a head start on their compliance efforts but will need to plan privacy compliance program adjustments to be fully prepared for the CDPA, including consumer rights regarding personal data, controller responsibility, and more.
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California
Yes, the CPRA deferred some of the CCPA’s employee-related requirements until Jan. 1, 2023. That said, employers are still required to provide employees with notice prior to collection of personal data. Since January 1, 2020, a notice at collection, which must be provided “at or before the point at which” the collection of information occurs, including: a list of personal information categories collected, permissible purpose, how to opt out, and how to find and view a company’s privacy notice.
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Questions? We’re here to help!

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