JULY UPDATE: Redaction of Information within California Court Records

We’ve briefly mentioned this before, but it certainly bears repeating as everyone here at A-Check Global remains focused on providing accurate, compliant service, all with the shortest turnaround times possible. As you may know, we closely follow and participate in efforts to address California Rules of Court, rule 2.507—legislation which resulted in removal of date of birth and other personal information from publicly accessible criminal record cases.

Consumer Reporting Agencies like A-Check rely on personal information within court public indexes as an accuracy indicator during criminal background screening. It is reported that greater than 30% of California’s 58 counties now redact full or partial DOBs from criminal case records.

While we will never accept service disruptions as the “new normal,” for now, service impact is often an unfortunate combination of issues. For example, A-Check has seen problematic delays in many counties because they’ve not only removed DOBs from publicly accessible case information, but now also have limited processes in place to help court researchers in person. This causes name matches to get heavily delayed. In fact, we’ve also seen many researchers are being limited to a maximum number of daily case requests—likely an effort to give courts the best opportunity possible to keep up with demand.

There is certainly no magic solution to this redaction rule, and delays may continue within these counties for the foreseeable future. That said, please know that A-Check and our researchers, along with other CRAs, data providers, and industry organizations like the Professional Background Screening Association (PBSA) continue to actively lobby in favor of productive revisions to the rule for specific, permissible purpose (like background screening).

While this is only a snapshot of service impact as of this writing, A-Check is seeing process delays in the following California counties: Butte, Calaveras, Contra Costa, Glenn, Lake, Lassen, Los Angeles, Madera, Marin, Merced, Napa, Placer, Riverside, San Benito, San Mateo, Santa Clara, Shasta, Solano, Ventura, and Yuba.

In spite of challenges we face throughout numerous counties within California, we will continue to serve our valued clients to the best of our ability.

We’re here to help answer any questions you may have.


Drug Test Positivity Reaches Highest Level in Two Decades

According to drug testing analysis based on more than 11 million drug test lab results conducted throughout 2021 by Quest Diagnostics, the rate of drug test positivity across the combined U.S. workforce hit a two-decade high last year. This is 30% higher than recorded all-time lows in 2010-2012, bringing added recruiting complexity to HR professionals hiring for safe, healthy workplaces.

A closer look at workforce drug use

The Quest Diagnostics Drug Testing Index Analysis looks at the combined U.S. workforce including private employers with company testing policies, as well as federally mandated, safety-sensitive positions such as federal employees and transportation positions like pilots, forklift operators, etc. The overall positivity rate for this combined workforce was 4.6% in 2021, up from 4.4% in 2020. In comparison to just a decade ago between 2010 and 2012, overall positivity was 3.5%.

And, as you might imagine, marijuana positivity continues to represent much of the increase. Over five years, positivity for marijuana in the overall U.S. workforce increased 50% (2.6% in 2017 versus 3.9% in 2021).

When looking at the federally mandated, safety-sensitive workforce only, Quest reports steady numbers between 2022 and 2021 at 2.2% positivity. However, among this group, there were slight rises in positivity results for marijuana (0.79% in 2020 to 0.86% in 2021), amphetamines (0.64% in 2020 to 0.69% in 2021), and cocaine (0.20% in 2020 to 0.21% in 2021).

Post-accident testing

  • Urine positivity rates for post-accident testing (marijuana, cocaine, and semi-synthetic opiates) increased at a greater rate than pre-employment testing over five years
  • General U.S. workforce urine drug testing, pre-employment positivity increased 17.4% (4.6% in 2017, 5.4% in 2021) and post-accident positivity increased 26% (7.7% in 2017, 9.7% in 2021)
  • Federally mandated, safety-sensitive workforce urine drug testing, pre-employment positivity increased 9.5% (2.1% in 2017, 2.3% in 2021) while post-accident positivity increased 41.9% (3.1% in 2017, 4.4% in 2021)

Drug use by industry

Overall positivity rates increased in 16 out of 17 identified industries between 2017 and 2021. The Retail Trade industry reported the highest positivity rate in 2021 at 7%, resulting in a nearly 35% increase since 2017. And again, as you might expect, marijuana positivity increased in all industries from 2017 to 2021. The Accommodation and Food Service industry had the highest workforce positivity for marijuana at 7.5%, an increase over 3.5% in 2017.

What to make of this information

Today, the workforce is certainly fueled by shifting attitudes on drug use. The decriminalization of marijuana specifically is a country-wide evolution in legislation as a growing number of states and jurisdictions allow marijuana for both medical and recreational use. Across all age groups, from Gen Z to Boomers, perceptions are changing. Over time, there will be decisions to be made as companies balance their requirement for drug testing policies with the management of workplace risk from drug use, including workplace accidents, absenteeism, and noticeable decreases in productivity.

Here at A-Check Global, we welcome the opportunity to speak with you about your drug testing program. We are always available to discuss your business needs and share drug testing best practices with you based on similar client activity within your industry. Evolution of your program may be as simple as making slight adjustments to your drug testing panel or implementing quick solutions like oral fluid testing to help you make immediate employment decisions on-site.

We understand that in the midst of the Great Resignation, it’s tough enough to find and retain top talent. We’re here to help make your recruiting process as easy as possible. This includes convenient, compliant, and candidate-friendly drug testing solutions to keep your recruiting process as smooth and pain free as possible.

Got questions? We love that. Please don’t hesitate to reach out and let us know how we can help.


Compliance Clips for July 2022


Nationwide Credit Reporting
The three major credit bureaus announced that beginning July 1, 2022, paid medical collection debts will be removed from consumer credit reports, and the time period before unpaid medical debts are reported increases from six months to one year. Additionally, in the first half of 2023, it has been announced that medical collection accounts $500 and under will no longer be included in a consumer credit report. While these changes don’t and won’t eliminate medical debt from credit reports entirely, the three credit bureaus—Equifax, Experian and TransUnion—do note that they anticipate as much as 70% of consumer medical debt will be removed from credit reports. Please keep in mind that for those consumers who have medical debt on a credit card, that will continue to exist as credit card/loan debt until paid.

Nationwide EEOC Guidance
New EEOC guidance for employers using AI during hiring: AI can potentially discriminate against applicants with disabilities. On May 12, 2022, the Equal Employment Opportunity Commission issued a new comprehensive “technical assistance” guidance entitled The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees. As referenced in this guidance, the “screen out” problem of AI rejecting applicants who would otherwise qualify for the job with reasonable accommodation is addressed. Under the ADA, a screen out is unlawful if the tool screened out an individual who can perform essential functions of the job with a reasonable accommodation. Employers should proactively manage risk by addressing unintended results from AI technology and communicate up front the knowledge, skill, ability, education, experience, quality, or trait that will be measured or screened with the AI tool. All while further empowering applicants to share if they feel some disability accommodation will be needed.

FCRA Compliance
It’s always a good time to check, double-, and triple-check to ensure that your background check consumer reporting is FCRA compliant. When an employer uses a third party (like A-Check Global) to conduct background checks, there are FCRA compliance requirements that must be followed. For your convenience, here’s a short 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.
  • If adverse action is taken upon final decision, provide the individual with a final notice of adverse action.

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

Pre-Adverse Action Requirements
While the case in this example was a win for the employer, it’s a great reminder that compliance with FCRA law at every step of the background screening process can help minimize risk from costly litigation. If an employer decides to rescind an offer based on information from a report—a criminal conviction in this case—then before taking adverse action the employer must provide the applicant with: (1) a copy of the background check and (2) a written summary of consumer rights. The prospective employee then gets a reasonable amount of time to dispute the accuracy of the report. While this employer did not provide the report before rescinding the offer, the applicant’s suit did not prevail under FCRA because they do not have the right to dispute accurate—but negative—information found on the report.


Washington D.C.
If approved and signed into law, Washington, D.C. will join an increasing number of state and local jurisdictions restricting employers from testing employees for cannabis use as a condition of employment. The bill applies to nearly all employers in D.C. and under the bill, employers cannot terminate, suspend, fail to promote, demote, refuse to hire, or otherwise penalize an employee or prospective employee based on their cannabis use, their status as a medical cannabis program patient, or the presence of cannabinoid metabolites in their system without additional factors indicating impairment. That said, employers can test and discipline employees in safety-sensitive positions for cannabis use and can test to comply with federal statute, federal regulations, or federal contracts. Employers can also require post-accident and reasonable-suspicion drug testing.

Please keep in mind that A-Check Global is always here to help as you determine the course of your own employment drug testing.


Federal Employees
We’ll keep an eye on this. Ban the Box regulations—the consideration of an applicant or employee’s criminal history during employment decisions—have been proposed for federal employees, perhaps serving as a model for upcoming regulations governing the consideration of applicant criminal history for federal contractors as well. The U.S. Office of Personnel Management (OPM) proposed initial regulations to implement the Fair Chance to Compete for Jobs Act of 2019 (Fair Chance Act). Initially, as mentioned, these proposed regulations, if adopted, will affect only federal employees.

Des Moines, Iowa
Although not widely promoted, the city of Des Moines, Iowa, passed a “ban-the-box” law limiting employer inquiries into an applicant’s criminal history until after a conditional offer of employment. The Des Moines city council unanimously passed the ordinance amending municipal code to make it “illegal and discriminatory” for employers to: (1) include criminal history inquiries on an application, and (2) inquire into criminal history or conduct criminal background checks before a conditional offer of employment.


Federal Privacy Law Discussion
On June 3, 2022, a bipartisan group of lawmakers published a discussion draft for the proposed American Data Privacy and Protection Act (ADPPA)—momentum in the effort toward a federal privacy law. The ADPPA is a draft bill and is yet to be introduced in the U.S. House or Senate, which means that any provision is subject to amendment. The ADPPA would apply broadly to organizations and businesses operating in the United States and defines consumer protection of “Covered data”—information that identifies or is linked or reasonably linkable to an individual or a device that identifies or is linked or reasonably linkable to one or more individuals, including derived data and unique identifiers. We’ll keep an eye on these efforts and will report progress.

Questions? We’re here to help!