CONSUMER REPORTING AND EMPLOYER COMPLIANCE INFORMATION
In employer compliance news: Washington has amended its Equal Pay and Opportunities Act (EPOA) to require employers to include wage and benefit information in their job postings, effective January 1, 2023. Washington is the third jurisdiction to do so, in an effort to address what is seen as a significant pay gap. This new regulation replaces a prior requirement that employers provide employee pay information to applicants “upon request” after receiving an employment offer, and applies to employers with 15 or more employees.
Compliance counts! An important reminder that FCRA compliance includes obtaining authorization from a candidate prior to a background check, and that these appropriate disclosures are presented as standalone documents. In a case detailed here, a plaintiff filed suit in the Superior Court of San Diego County alleging the defendant willfully violated the FCRA by providing job applicants with a disclosure form that included extraneous language unrelated to the topic of consumer reports (a background check in this case). The California Court of Appeals reversed a previous decision, noting that the defendant’s prolonged use of the disclosure form could suggest recklessness because the defendant lacked ongoing monitoring and legal guidance to guarantee FCRA compliance of documents.
An Important Compliance Reminder
Although in this case, a Federal Appeals Court sided with the employer, it’s a good opportunity to remember that without documented background screening processes, claims of FCRA violations can become costly class action lawsuits. According to a recent decision from a federal appeals court, the applicant didn’t claim criminal information found on the background report was wrong. Instead, the claim stated that time should have been allowed to explain the conviction before the offer was withdrawn. the 8th U.S. Circuit Court of Appeals ruled in favor of the employer. However, as noted, while the applicant did not receive a copy of the report prior to rescindment of an employment offer, the applicant did not claim the report was inaccurate.
Tips for Background Check Compliance
If you aren’t performing candidate background checks, or worse yet, doing them incorrectly, you could become the defendant in a lawsuit. Here are 6 great tips employers should keep in mind:
1) Checking initially for candidate application errors that can cause potential issues
2) Using an accredited background screening company—like A-Check Global
3) Simplifying your screening process and candidate communication
4) Focusing on FCRA compliance throughout the workflow
5) Reviewing requirements for Ban the Box and other state-by-state legislation
6) And, understanding limitations for credit history and/or salary inquiries
I-9 AND E-VERIFY
Document Review Extension
U.S. Immigration and Customs Enforcement (ICE) announced a thirteenth extension, this time for a six-month period—until October 31, 2022—of I-9 compliance flexibility rules relating to Form I-9. This flexibility allows ongoing exemptions for “in-person” work authorization document review for companies still offering remote work schedules. That said, there is also discussion that the government is still considering a permanent virtual option for document review. We will continue to watch this issue and report further information.
REMINDER: Expired List B Document Requirements
Employers who have accepted expired List B documents should now update their I-9 forms in accordance with DHS instructions that took effect May 1, 2022. The DHS announced that starting May 1, 2022, employers must only accept unexpired List B documents when completing Form I-9. What’s more, employers should audit all Form I-9s completed between May 1, 2020 and April 30, 2022 to determine if any of them need to be updated with a current (unexpired) identity document.
SUBSTANCE ABUSE TESTING
As we all know, there are a growing number of states with varying degrees of legalized marijuana. For some, medical marijuana is legal, but not recreational. For others, marijuana is fully legalized. And in some states, including New Jersey and New York, even testing for marijuana is regulated by legislation. For employers operating in multiple states, marijuana testing obligations will be different from location to location. One option with growing popularity among employers is to have a comprehensive drug testing policy stating your company does not condone marijuana use, and the company will comply with applicable laws in states/jurisdictions where it does business. That of course means substance abuse policy will differ depending on where your employees work. It’s certainly one approach to drug testing among many, but always remember A-Check is here to help answer any questions you may have.
A last attempt to pass marijuana legalization legislation this year in New Hampshire has failed, and it looks like no further marijuana proposals are expected this year for NH. Senate Bill 299 would have allowed adults to possess and grow small amounts of cannabis, and would have also removed the current $100 penalty for possessing less than three-quarters of an ounce of marijuana.
To date, thirty-seven states and Washington, D.C. have laws legalizing medical marijuana, with 19 states and D.C. legalizing marijuana for recreational purposes, according to the National Conference of State Legislatures.
Please keep in mind that A-Check Global is always here to help as you determine the course of your own employment drug testing.
BAN THE BOX
Tampa, Florida is currently developing a plan to get employers and city contractors to stop asking job applicants about their criminal history prior to a conditional offer. This Ban the Box effort would also help to promote businesses hiring people with criminal records. Tampa sees this effort—to be potentially approved at a later meeting—as a move toward increased overall employment, and the reduction of repeat criminal offenders.
Connecticut is poised to become the fifth state to enact comprehensive privacy legislation, with most of the new law’s provisions taking effect July 1, 2023. Connecticut legislation is modeled after the Colorado Privacy Act (CPA) and the Virginia Consumer Data Protection Act (VCDPA), using many of the same definitions and provisions to align with the laws in these jurisdictions. This includes: the right to access personal data, the right to correct personal data, the right to delete personal data provided by or obtained about the consumer, the right to port the consumer’s data to another entity and, the right to opt out of the sale of personal data, targeted advertising, and profiling.
Worldwide Data Privacy
Data privacy laws in place—and others coming soon—will likely impact nearly every business in some way. Especially in a globalized economy where more and more companies have a worldwide footprint of business activity. Now, more than every before, it’s important for companies to grow data privacy teams, and have informed approaches to doing business while also complying with global privacy requirements. Financial penalties for non-compliance can be very steep and vary significantly depending on legislation. Here’s a good look at current regulations, as well as penalties for non-compliance.
Questions? We’re here to help!