UPDATE: September 30, 2022
California SB 1262 Vetoed by the Governor
We want to inform you that on September 29, Governor Gavin Newsom chose to veto SB 1262. For employers and the background screening industry, this is very disappointing news as his signature would have meant that previously redacted court case information would be restored beginning January 2023.
PBSA and its allies—including A-Check Global—will continue to work closely together to determine options at this stage. Of course, we will continue to provide our valued clients with updates in the near future. And as always, we thank you for your business.
As you know, Consumer Reporting Agencies like A-Check Global rely on personal information within court indexes as an accuracy indicator during criminal background screening. We previously reported that more than 30% of California’s 58 counties were now redacting Date of Birth and other critical identifying information from criminal case records. We would like to now follow up with some great news.
The California State Assembly recently passed Senate Bill 1262 (SB 1262)—important legislation designed specifically to help stop delays in criminal background checks. This legislation will next be heading to the desk of California Governor Gavin Newsom for final approval and signature and will once again require publicly accessible electronic indexes of defendants in criminal cases to permit searches and filtering of results based on a defendant’s driver’s license number or date of birth, or both. For employers as well as the background screening industry, this is welcome news. Once the Governor signs the bill, previously redacted court case information is expected to be restored starting January 2023. We will certainly keep you updated as this progresses.
Your business means the world to us and we look forward to serving our valued California customers, as well as those nationwide and around the world, for years to come. We’re here to help if you have any questions.
CONSUMER REPORTING AND EMPLOYER COMPLIANCE INFORMATION
Pay Transparency Legislation
21 states and a number of local jurisdictions already have pay transparency laws that require employers to disclose pay ranges to job applicants and employees. This growing legislation trend means employers should take a closer look at job applications and postings to ensure they are compliant—especially as overall hiring becomes more detailed due to ongoing remote workforce options and multi-state hiring. All in all, it’s always a great time to review hiring practices with your legal counsel.
Let’s work together to help minimize the risk of class action FCRA lawsuits. In this case example, an organization recently agreed to a $225k settlement for violation of FCRA by failing to provide pre-adverse action notices when using background screening reports to make decisions regarding applicants and employees. As a reminder, 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. The individual must then be allowed at least five business days to dispute the information in the background check. If after that period of time adverse action is taken upon final decision, the individual must be provided with a final notice of adverse action.
New York City
Attention New York City employers: Effective January 1, 2023, local law will regulate the use of automated employment decision tools to identify and prohibit actions that discriminate against individuals in protected classes. What does this mean? Essentially, valuable online tools that are increasingly used during the employment process include algorithms and software geared toward finding top talent … but also has potential to impact scoring based on an individual’s gender, race, job title, etc. Generally speaking, New York City law will require that 1) IA tools are subject to a “bias audit” prior to using, and 2) employers will be required to meet certain notice requirements to candidates and employees.
It’s worth one more reminder that the employer deadline was July 31, to update expired List B (proof of identification) with current proofs of identification for employees hired between May 1, 2020 and April 30, 2022 who presented an expired document. The Department of Homeland Security (DHS) adopted the temporary policy flexibility in response to challenges employers faced with renewing these documents during COVID. Now that document-issuing authorities have reopened and/or provided alternatives to in-person renewals, the DHS ended this flexibility May 1, 2022, and employers must once again accept only unexpired List B documents.
SUBSTANCE ABUSE TESTING
In the News: Mushrooms
With some discussion at the state level around decriminalization of mushroom microdosing, it’s worth mentioning that while mushrooms won’t show up on most routine drug tests, drug contamination (lacing) likely will. Mushrooms generally won’t show up on a 5-panel test. Same goes for 8-, 10-, and 12-panel tests, but certain specialized tests might detect them. What’s interesting is that there have been reports of people selling regular, store-bought mushrooms laced with other drugs, including PCP, which is detected by most panel tests. So in general, while most organizations probably aren’t testing for mushrooms, applicants may inadvertently return a non-negative test depending on what they’ve unknowingly ingested.
Missouri voters will have a chance to vote on a proposed initiative to legalize recreational marijuana during this November’s general election. If passed, legislation would amend the Missouri Constitution to legalize the possession and use of marijuana for those 21 and older, allowing adults to purchase up to three ounces of marijuana at a time. The measure also allows adults who obtain a registration card to cultivate marijuana at home.
Also up for vote in 2022, North Dakota voters will have the chance to decide on marijuana legalization at the ballot this November. The initiative would allow adults 21 and older to purchase and possess up to one ounce of cannabis and grow up to three plants for personal use. Its provisions largely mirror the House-passed legalization bill that was ultimately rejected by the Senate.
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
Harris County, Texas
Harris County represents the sixth Texas city or county to adopt a Ban the Box hiring policy. This Harris County policy applies only to public employers, not private employers. Ban the Box legislation has continued to gain momentum throughout the country. In fact, 37 states and more than 150 cities/counties have enacted Ban the Box legislation to help ensure that employers first consider an applicant’s skills and qualifications before viewing criminal history. This provides greater assurance that there is no negative bias to an employment application due to criminal convictions.
Questions? We’re here to help!