If an applicant lacks concrete injury based on technical violation of FCRA employment purposes, is that grounds to sue? There is disagreement among courts, but time may bring consensus whether technical violation constitutes applicant injury. In this particular case, the plaintiff sued, claiming that he was not provided with the FCRA Summary of Rights, and was not permitted to review the report to address any information in it before his offer of employment was withdrawn. He did not, however, claim that any information in the report was inaccurate, or that his review would have resulted in him obtaining employment. The court determined that the plaintiff had standing to bring suit for this procedural violation of the FCRA.
Let’s help keep your employment program compliant. Class action suits are ever present, as this gig employer is hit with lawsuit alleging unlawful use of criminal history to discriminate against New York City drivers. FCRA and its state equivalents impose requirements on employers using consumer reports for employment purposes, including providing notice to individuals before taking adverse action based on a consumer report. This lawsuit alleges the employer failed to comply with these requirements.
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 MAY 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.
Florida Employers: A 2021 reminder worth mentioning. Public employers, contractors and subcontractors in the state of Florida are now required to enroll in and use the E-Verify system to verify identity and eligibility of all new employees. Private employers are not required to use the E-Verify system unless they have a contract with a public employer or they apply for taxpayer-funded incentives through the state Department of Economic Opportunity. They must, however, still complete and maintain I-9 Employment Eligibility Verification forms for the duration of employment, and for at least one year from the date the employee is terminated or three years from hire, whichever is later under the federal Immigration Reform and Control Act of 1986.
BAN THE BOX
Illinois recently enacted SB 1480 (The Employee Background Fairness Act) which significantly expands Ban the Box law to restrict private employers from using a conviction record to refuse to hire, deny promotion, or take adverse action. Along with a clear definition of adverse action an employer must take prior to an employment decision, an employer may only consider an applicant or employee’s criminal convictions record if either the employment position offers the opportunity for the same or a similar offense to occur, or if hiring the applicant or continuing the current employee’s employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
SUBSTANCE ABUSE TESTING
New Mexico, Virginia
Following recent New York and New Jersey recreational cannabis laws, New Mexico and Virginia have now enacted similar laws regarding adult recreational cannabis use, effective July 1, 2021. Likely, employers can still prohibit cannabis and impairment at their worksites, but this does provide a good opportunity for employers to assess the implications of the laws on their current policies and drug testing practices.
New York State legalizes recreational adult use of marijuana. On March 31, New York Governor Andrew Cuomo signed into law the New York State Cannabis/Marijuana Regulation & Taxation Act. While, this act is not intended to limit authority of employers from enforcing workplace drug policies, it does prohibit discrimination because of an individual’s lawful activities outside the workplace, now including the use of cannabis in accordance with state law.
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.
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.
On March 2, 2021, Governor Northam signed into law Virginia’s own Consumer Data Protection Act (CDPA), the second comprehensive state data privacy law in the United States after the California Consumer Privacy Act of 2018 (CCPA). The law will go into effect on January 1, 2023. As anticipated, it governs companies who collect and control consumer personal data, obligating them to have security measures and accountability in place to protect and safeguard the data. There are now more than 20 other states with active introduction of privacy legislation. Here’s the list:
Washington, Oklahoma, Florida
For now, proposed statewide privacy legislation in both Washington and Oklahoma fails to advance. While in Florida, the chances of passing a comprehensive privacy law are good, but legislation is currently undergoing significant amendment.
Questions? We’re here to help!