CONSUMER REPORTING AND EMPLOYER COMPLIANCE INFORMATION
This recent case, while ruled in favor of the employer, is a great reminder for California (and all) employers to approach background checks very carefully. In this case, the plaintiff alleged the employer violated the FCRA by including additional information in the background consent form, which caused confusion and ultimately led to “injury.” As a reminder, the FCRA requires that an employer provide a “clear and conspicuous disclosure” in writing consisting solely of the disclosure, and that a consumer report may be obtained for employment purposes. Here at A-Check, we see these cases as a perfect opportunity to mention it’s always a good time to review your company’s policies and disclosures to ensure compliance while conducting background checks.
Job Listing Checklist
Here’s a helpful checklist of things to consider for 2023 updates to your job descriptions. Accurate and current job descriptions can help you minimize litigation risk. Inaccurate job descriptions can cause issues for any employer. A well written, current job description can not only help with employment decisions but can also be evidence of compliance with ADA, FMLA, and FLSA.
Employer Reminder: An E-Verify user’s access must be promptly terminated upon separation from your organization. Review and update existing users whenever staffing changes occur and on a regular basis. Failure to promptly terminate user access upon separation is a violation of the Memorandum of Understanding, Article II, section A3 (PDF).
SUBSTANCE ABUSE TESTING
Recreational marijuana is now legal in Missouri. Voters passed Constitutional Amendment 3, decriminalizing the purchase, possession, and use of marijuana for recreational and personal purposes. With this new legislation, 1) Employers may not discriminate against a person in any employment action for medical or recreational marijuana use, 2) Employers may still enforce drug-free workplace rules, including discipline or termination for being under the influence of marijuana at work, 3) Expungement of certain non-violent marijuana convictions may relieve job candidates from disclosing convictions, and 4) Certain regulated industries will remain unaffected by this legislation. That said, please speak with your legal counsel to determine your company’s policy regarding marijuana use.
While Nevada law requires employers to attempt to make reasonable accommodations for its employees’ use of medical cannabis outside of the workplace, employees can sue employers violating that law. In the case illustrated in this article, the Court ruled that legislation does not define exactly what employers are required to do to provide accommodation for medial cannabis. That said, the takeaway is that accommodation could align with other accommodation requests for disability. This includes determining whether 1) The employee can continue to perform essential job duties while using medical cannabis off the premises and 2) The employee’s use of medical cannabis places an undue hardship on the company. Keep in mind that accommodations are likely inappropriate for employees who hold commercial driving or heavy machinery duties. Litigation is of course on the rise. We recommend you speak with your legal counsel regarding accommodation requests.
Here’s a quick look at where the nation stands with cannabis legalization as well as with existing and potential legislation (California, Illinois and Colorado) to seal or expunge low-level cannabis-related convictions.
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
Gainesville is the first city in Florida to pass a fair chance hiring law applying to private employers with 15+ employees. Now, criminal background checks of a candidate are prohibited until after making a conditional employment offer. Employers still have ability to rescind the offer after the background check, but those in favor of Ban the Box practices see hope that delaying that step is a big push toward equity among candidates, helps create a much larger pool of job candidates, and goes far in providing job opportunity for those who have criminal convictions.
Connecticut employers: The Clean Slate law became effective January 1, 2023, providing for the automatic erasure of misdemeanors and low-level felony records after seven years from the date of conviction. Keep in mind that those convicted of sexual offenses, family violence, and firearm-related crimes are not eligible for erasure of those records under new law. Now that this Clean Slate law is effective, employers should review their employment policies because it is now unlawful and discriminatory to make employment decisions based on erased criminal records. READ MORE
California employers: July 1, 2023, SB 731 will provide for automatic sealing of certain felony criminal records, provided sentences, probation, and a 4-year clean record have been fulfilled. Sealing of these records will make them unavailable to most employers through a background search. Please note that defendants with sex offender status are excluded from sealing.
Minnesota is now considering an extension of their existing Ban the Box legislation to include board and commission positions in Minnesota state government. While earlier legislation banned the box for corporate jobs, it neglected to do so for government positions. This effort hopes to address the issue.
CONSUMER PRIVACY AND DATA PROTECTION
Beginning January 1, 2023, provisions of the California Privacy Rights Act (“CPRA”) went into effect, expanding portions of the California Consumer Privacy Act (“CCPA”). Among key enhancements are 1) Additional requirements are placed on employers when responding to employee inquiries about collection and processing of personal information, 2) Employers will provide employees with an enhanced notice of how employee personal information is handled, and 3) Expanding the definition of personal information to include email addresses when used in combination with passwords or security questions. Here’s a closer look at this updated legislation.
Questions? We’re here to help!
Compliance Clips for February 2023
CONSUMER REPORTING AND EMPLOYER COMPLIANCE INFORMATION