In the Know: December 2021 Compliance Clips

CONSUMER REPORTING

PBSA Reports Positive Progress Regarding Michigan Date of Birth Redaction
As previously shared, a new Michigan rule, scheduled to go into effect by January 1, 2022, would remove date of birth (DOB) from public facing records.

The Professional Background Screening Association (PBSA)—an important, non-profit organization established to represent the interest of companies offering employment background screening services—along with many industry allies, have been actively advocating to retain the DOB within Michigan court records as a critical identifier in accurate, comprehensive background screening.

A recent PBSA Advisory reports that the Michigan Supreme Court has officially adopted a negotiated court rule on Michigan redaction on Monday, December 6th, 2021.

Key elements of the rule are:

  1. Definition of what constitutes “consent” for purposes of background screening.
  2. Outlining a registration process for Michigan members as well as requirements for proof of liability insurance. This proposed registration would need to be verified every 6 months.
  3. Moving the effective date of these new procedures from January 1, 2022, to April 1, 2022.
  4. There is a public comment period in the new rule which will close on April 1, 2022.

The adopted rule addresses complaints about the original proposed rule (ADM File No. 2020-26), which would have barred the display of DOB in court records throughout Michigan. We will continue to monitor developments on this issue up to April 1, 2022, and keep you updated as more information becomes available.

CFPB Advisory Opinion on Name Only Matching
On November 4, the Consumer Financial Protection Bureau (CFPB) issued an advisory opinion, stating that a consumer reporting agency (CRA) engaging in name-only matching violates the Fair Credit Reporting Act’s (FCRA) reasonable procedures requirement, 15 U.S.C. § 1681e(b). This opinion regarding the production of consumer reports stresses the importance of ensuring accuracy in the process. Specifically, that matching on name only very likely leads to report inaccuracies because thousands of consumers share first and last name combinations. These inaccuracies, as stated in the opinion, could also put Hispanic, Asian, and Black consumers at greater potential risk for inaccuracy due to lesser last name diversity among these populations. Here at A-Check Global, we take note of these positions and strive to maintain compliant, accurate policies that mitigate risk during the background screening process.
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I-9 AND E-VERIFY

Ongoing Extension: Form I-9 Requirements in response to COVID-19
Because of ongoing COVID-19 precautions, remote I-9 document review has been extended; the expiration date for these accommodations is now December 31, 2021.

UPDATE: On Monday, October 25, 2021, the DHS announced they are seeking public feedback on the possibility of making the remote document verification option for Form I-9 permanent. This is welcome news as many trend toward permanent hybrid work solutions, and is encouraging that the government is closely following workplace trends and is willing to take a look at updating the Form I-9 process. We will keep a close eye on this and let you know as more becomes available.
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CRIMINAL HISTORY REPORTING

California’s Fair Chance Act and Job Advertising
The Fair Chance Act—known commonly as California’s Ban the Box law—restricts employers with 5 or more employees from requesting criminal conviction history from job applicants (in advertising, applications, or during a job interview) prior to a conditional employment offer.

Recently, California’s Department of Fair Employment and Housing has promoted enforcement of the Fair Chance Act by introducing tech efforts to correct violations in online job postings. Put simply, mass searches through online job listings identify prohibited statements such as those prohibiting employment to anyone with a criminal conviction history. In just one day, they found 500+ job advertisement violations!
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University of Michigan
The University of Michigan removed questions asking applicants about criminal history from the application process. Inquiries are now part of the pre-employment background screening conducted after a contingent job offer. While answering “yes” to criminal history questions on a job application did not automatically disqualify previous applicants, the question in and of itself likely deterred qualified applicants from applying.
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SUBSTANCE ABUSE TESTING

New York
The New York State Department of Labor recently issued guidance to address questions regarding recreational cannabis use by employees in and outside of the workplace. This guidance is intended to provide details regarding common scenarios and questions regarding adult-use cannabis and the Marijuana Regulation and Taxation Act (MRTA). In short, New York labor law states that cannabis used in accordance with New York state law is legal—and as such, employers are prohibited from discriminating against employees based on the employee’s use of cannabis outside of the workplace, outside of work hours, and without use of the employer’s equipment or property. That said, there are employer actions permitted, such as when an employee, while working, manifests specific symptoms that impair performance or interfere with workplace safety. Time for employers to review policies and practices to ensure compliance.
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DATA PRIVACY

Nationwide
As more U.S. states—and even the federal government—consider privacy law, notable trends may continue to influence legislation: concern for targeted advertising, further definition for sensitive information, even how GDPR can continue as a key model for lawmaking. Recently, U.S. Representatives have submitted the “Control Our Data Act” privacy bill, which looks to have provisions very much like GDPR—required notice, consumer right to delete information, retention limits, information security measures, and more.
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