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Compliance Clips for January 2021

CONSUMER REPORTING

FCRA Violation Finding
Another reminder regarding the importance of FCRA compliance: On November 12, 2020, Illinois-based a non-bank debt collector and furnisher of consumer information, and the Consumer Financial Protection Bureau (CFPB) entered into a Consent Order requiring that they take a number of affirmative actions to prevent future violations of the Fair Credit Reporting Act (FCRA) as well as pay a $500,000 civil money penalty for past violations, including consumer disclosure and communication.
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A Friendly Reminder about FCRA Requirements
As you’re well aware, when an employer uses a third party (like A-Check) to conduct background checks, there are FCRA compliance requirements that must be followed. For your convenience, here’s a very quick 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
  • Upon a final decision, and if adverse action is taken, provide the individual with a final notice of adverse action.

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

I-9 AND E-VERIFY

Further Extension: Form I-9 Requirements in response to COVID-19
The in-person requirement for the Form I-9 is temporarily suspended if your company is closed or taking other precautions due to COVID-19. The general rule is that an employer must undertake a physical inspection of the document(s) presented by the employee for section 2 purposes.

UPDATE: Because of ongoing COVID-19 precautions, remote I-9 document review has been extended; the expiration date for these accommodations is now January 31, 2021.

The government has suspended the in-person and physical inspection of the document(s) presented by the employee when completing the Form I-9. During this time, an employer can view the document(s) presented by the employee via Zoom or Skype, for example.
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SUBSTANCE ABUSE TESTING

Virginia
On the heels of the November election, Virginia Gov. Ralph Northam announced a plan to establish a path toward marijuana legalization. However, it is assumed that legalizing recreational marijuana will likely be a lengthy process. If legislation passes, Virginia would join about a dozen other states and could become the first state in the South to legalize recreational marijuana. Currently, medical cannabis is legal in Virginia for certain patients.
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New Jersey
Because legalized adult recreational use of cannabis is coming to New Jersey—as of January 1, 2021—employers will want to start considering steps toward compliance while proposed laws are in discussion. Here’s a good list of where to focus initial efforts. Specifically, hiring and adverse action guidance for employees based on cannabis use. Likewise, proposed law would permit employers to keep or establish drug and alcohol-free workplaces and employers would not have to permit or accommodate cannabis use in the workplace or during work hours.
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Texas
In news we’re watching: Historically, Texas has taken a tough stance on marijuana possession, but Texas lawmakers will once again take another run at legislation to legalize marijuana when the legislature convenes in January, 2021. But while those who are pre-filing marijuana legalization bills have high hopes, most political pundits say they doubt that Texas will decriminalize marijuana in 2021.
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Federal
The nation may be one step closer to federal decriminalization of cannabis. A House of Representatives vote, 228-164, removes marijuana from the federal Controlled Substances Act, eliminating conflict between state and federal marijuana laws. The legislation would also expunge some criminal records, allow for more testing and research of the substance, allow veterans for the first time to obtain medical cannabis recommendations from their VA doctors, remove the threat of deportation for immigrants accused of minor marijuana infractions or who are gainfully employed in the state-legal cannabis industry, and create funding for people and communities impacted by the War on Drugs.
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AS A REMINDER: At A-Check, we’re happy to help implement a drug screening program that meets your evolving needs—or make adjustments to the program you’re already running with us. Just give us a call at 877-345-2021 and ask to speak with someone on your Client Relations team.

BAN THE BOX

New York City
On December 10, 2020, New York City expanded the scope of its Ban the Box law—the New York City Fair Chance Act (FCU)—further limiting an employer’s ability to take adverse action based on pending criminal charges or arrests, or convictions arising during employment. The amendments expand the FCA’s protections by requiring employers to apply the FCA review process before taking adverse action based on an applicant or employee’s pending, open criminal charges, arrests or accusations. The amendments to the FCA also apply the FCA notice and review process to criminal convictions arising during employment.
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COVID-19

A Quick Scam Reminder
In a recent BBB Scam Alert: COVID-19 vaccines have arrived. So have the scams. Watch out for phony treatments and phishing messages while government officials crack down on fake testing kits and vaccines. Scammers are very creative, so be skeptical of anything that seems too good—or crazy—to be true. Double check any information about the vaccine with official news sources. And be aware that none of the vaccines can be currently purchased online or in stores.
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Return-to-Office COVID-19 Testing Services for Your Workforce
Depending on your company’s policy, requiring employees to test negative for COVID-19 prior to an office return may be a viable complement to office cleaning and sanitation practices you may already have in place. We want to quickly let you know that A-Check is here to help by providing solutions to meet your immediate needs. Testing and surveillance services through A-Check’s Medical Center partner networks can help as your employees return to the office.
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Questions? We’re here to help.

Featured

Celebrating 50 Years of the FCRA

Perhaps it went a little unnoticed by many, but let’s take just a moment now to acknowledge that the Fair Credit Reporting Act (FCRA)—the nation’s first consumer financial privacy statute—recently celebrated its 50th anniversary. The FCRA was designed to regulate the practices of consumer reporting agencies (CRAs) that collect and process information into reports used by businesses to make informed financial or employment decisions about consumers. Since 1970, the law has been an immense benefit to consumers, and will continue to ensure covered entities honor their legal obligations. Likewise, it will also require ongoing review to address the evolving economic landscape.

There have been many additional developments to the FCRA over the years, but three important features are as applicable today as they were decades ago during its introduction:

  • The law was constructed to regulate the efficiency of the nation’s consumer credit reporting organizations, drastically reducing the amount of time it took credit applications to be reviewed and processed.
  • The FCRA included legislation specifically designed to improve accuracy and integrity of information presented in consumer reports.
  • And third, it set important—and evolving—provisions to minimize risk of misuse by specifically limiting private consumer information access to only those with a legitimate, permissible purpose to access it.
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A Friendly Reminder about FCRA Requirements

As you’re well aware, when an employer uses a third party (like A-Check) to conduct background checks, there are FCRA compliance requirements that must be followed. Because we’re committed to compliant business practice, we keep a close eye on our own efforts while processing your requests—and are equally committed to our clients’ compliance throughout their employment programs. For your convenience, here’s a very quick checklist of key requirements to keep handy:

  • 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.
  • Upon a final decision, and if adverse action is taken, provide the individual with a final notice of adverse action.

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

Featured

Compliance Clips for December 2020

CONSUMER REPORTING

The California Privacy Rights Act
The California Privacy Rights Act (CPRA), a ballot initiative approved by California voters, amends the California Consumer Privacy Act (CCPA) to create additional consumer rights and create a new category of consumer personal information. Never before has a state gone so far to protect consumer data privacy. Before the CPRA takes effect on Jan. 1, 2023, we expect to see another lengthy process of proposing, commenting on, and finalizing CPRA regulations, which the CPRA requires to be promulgated by July 1, 2022. Here’s a closer look.
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I-9 AND E-VERIFY

Further Extension: Form I-9 Requirements in response to COVID-19
The in-person requirement for the Form I-9 is temporarily suspended if your company is closed or taking other precautions due to COVID-19. The general rule is that an employer must undertake a physical inspection of the document(s) presented by the employee for section 2 purposes.

UPDATE: Because of ongoing COVID-19 precautions, remote I-9 document review has been extended; the expiration date for these accommodations is now December 31, 2020.

The government has suspended the in-person and physical inspection of the document(s) presented by the employee when completing the Form I-9. During this time, an employer can view the document(s) presented by the employee via Zoom or Skype, for example.
READ MORE

Recent E-Verify Requirement Update
The United States Citizenship and Immigration Services (USCIS) announced a new timing requirement for employers that receive a Tentative Nonconfirmation (TNC) during the E-Verify case creation process. E-Verify now requires enrolled employers to take action on Tentative Nonconfirmations (TNC) for their employees within 10 federal government working days or risk potential compliance actions, up to and including termination of their E-Verify account.
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SUBSTANCE ABUSE TESTING

New York
In news we’re watching: New York Gov. Andrew Cuomo has said legalizing marijuana could represent a key opportunity for the state to recover economically from the coronavirus pandemic. Cannabis has been decriminalized in New York since 2019, but recreational marijuana remains illegal in the state. The hope is to have something introduced to address this in early 2021.
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Ballot Measures Passed in November
Cannabis legalization was on many state ballots in November, and of the states that voted on cannabis, all approved legal recreational marijuana for adults age 21 and older. New Jersey and Montana approved recreational cannabis, Mississippi approved medical use, while South Dakota approved both recreational and medical use at one time.
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Oregon
In yet more recent ballot news, Oregon has become the first state to decriminalize personal possession of small amount of illegal hard drugs, including cocaine, heroin, oxycodone, and methamphetamine. The ballot measure reclassified possession of small amounts of a list of hard drugs as a Class E civil violation, similar to a traffic offense.
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AS A REMINDER: At A-Check, we’re happy to help implement a drug screening program that meets your evolving needs—or make adjustments to the program you’re already running with us. Just give us a call at 877-345-2021 and ask to speak with someone on your Client Relations team.

BAN THE BOX

Montgomery County, Maryland
The Montgomery County, Maryland Council approved amendments to its 2014 Ban the Box legislation. Original legislation prohibited employers with 15 or more full-time employees in Montgomery County from conducting a criminal background check of a job applicant, or otherwise inquiring about the criminal or arrest history of an applicant, prior to the completion of a first interview. Bill 35-20 expands previous legislation by prohibiting background checks until after extending a conditional job offer, and redefining “employer” to include any employer with one or more full-time employees in Montgomery County.
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COVID-19

Return-to-Office COVID-19 Testing Services for Your Workforce
Depending on your company’s policy, requiring employees to test negative for COVID-19 prior to an office return may be a viable complement to office cleaning and sanitation practices you may already have in place. We want to quickly let you know that A-Check is here to help by providing solutions to meet your immediate needs. Testing and surveillance services through A-Check’s partner network of Concentra Medical Centers can help as your employees return to the office.
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Questions? We’re here to help!

Featured

Compliance Clips for November 2020

EMPLOYMENT LAW

2020 Headlines
While Halloween is now officially behind us, it’s still worth a quick look at 2020 headlines that are sure to give HR professionals—and the rest of us—nightmares! Steer clear of lawsuits by managing with care and attention to employment law.
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I-9 AND E-VERIFY

Extension Still Applies: Form I-9 Requirements in response to COVID-19
The in-person requirement for the Form I-9 is temporarily suspended if your company is closed or taking other precautions due to COVID-19. 
The general rule is that an employer must undertake a physical inspection of the document(s) presented by the employee for section 2 purposes.

UPDATE: Because of ongoing COVID-19 precautions, remote I-9 document review has been extended; the expiration date for these accommodations is now November 19, 2020.

The government has suspended the in-person and physical inspection of the document(s) presented by the employee when completing the Form I-9. During this time, an employer can view the document(s) presented by the employee via Zoom or Skype, for example.
READ MORE

Exploring the Basics of Form I-9
With U.S. government focus on enforcement and audit of employee authorization to work, it’s always worth taking a few moments to review the basics of Form I-9. Every employer must have a Form I-9 for every employee. While the form itself is not complicated, accuracy and process counts to ensure that you’re prepared for an audit.
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SUBSTANCE ABUSE TESTING

Substance Abuse Trends Reported by Quest Diagnostics
U.S. General Workforce drug positivity hits 16-Year High in 2019. Quest Diagnostics—a trusted A-Check drug screening partner and leading provider of diagnostic services—recently released their Drug Testing Index™ analysis of more than nine million workplace drug test results. As Quest Diagnostics reports, even prior to COVID-19, workplace drug positivity rates were trending in the wrong direction. Now, with many Americans under higher stress levels as they continue to juggle remote work schedules, childcare and homeschool responsibilities, and even frustration from ongoing social isolation, it stands to reason that there may have been negative impact on general health and well-being during these recent months.
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AS A REMINDER: At A-Check, we’re happy to help implement a drug screening program that meets your evolving needs—or make adjustments to the program you’re already running with us. Just give us a call at 877-345-2021 and ask to speak with someone on your Client Relations team.

BAN THE BOX AND CRIMINAL HISTORY DISCLOSURE

Hawaii
Now effective, Hawaii has amended its Ban the Box law, offering protections for individuals with old and/or relatively minor conviction records. The law prevents most private sector employers from considering felony convictions older than seven years, and misdemeanor convictions older than five years. However, an employer making employment decisions may inquire about and consider an individual’s criminal conviction record, provided the conviction in question has a logical relationship to the position’s duties.
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South Carolina
In other Ban the Box news, the city of North Augusta, SC, is removing a question about criminal history from job applications for city positions. This change won’t alter the hiring process at all; it will simply remove the question from upcoming applications.
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A Ban the Box Overview
36 states and 150+ municipalities have Ban the Box laws to prohibit employers from asking about criminal history on job applications. This article quickly details a number of the most recent changes and updates in Hawaii, California, and St. Louis, Missouri.
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SALARY HISTORY

Maryland
Now effective as of October 1, 2020, there are more boxes to ban from Maryland employment applications. Maryland prohibits employers from asking about an applicant’s current or prior pay. This new law will 1) prohibit employers from requesting or relying on job applicants’ prior pay history to make decisions about employment or initial pay in most circumstances; and 2) require an employer to provide an applicant, upon request, with the wage range for the job applied for. The new law amends Maryland’s existing Equal Pay for Equal Work (EWEW) law, and will apply to all private, state, and local government employers in Maryland.
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A Look at Salary History Bans Already in Place
State and local governments are increasingly adopting legislation to prohibit employers from requesting salary history from job applicants. For your reference, here’s a great running list of states and localities that have legislation in place.
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COVID-19

Updated COVID-19 Guidance from the EEOC
While we mentioned this in last month’s email, it’s worth repeating, especially as many organizations continue to make cautious, careful decisions about the balance between remote and in-office workforces.

The EEOC recently updated guidance on the Americans with Disabilities Act (ADA) and the Coronavirus pandemic. This new information expands their prior guidance on how the ADA applies to the current pandemic. In a question and answer form, this guidance covers a number of important issues surrounding COVID-19 and the workplace, including: the right for an employer to ask employees entering the office if they have COVID-19 symptoms, the right for an employer to report employees with COVID-19 or associated symptoms to appropriate personnel, the right for an employer to require a temperature check, and much more.
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Questions? We’re here to help!

Featured

A Quick Look at Pre-Employment Credit Screening (From the Applicant Point of View)

If your organization runs pre-employment credit checks as part of your overall screening program, let’s ask you to put on your “applicant hat” for this blog entry. We’ll take a minute to look at credit checks from the applicant angle. And more importantly, to see what they face when applying for positions while also battling—or recovering from—lackluster credit histories.

So, just how many companies run pre-employment credit checks?

You might be surprised to know that a good percentage of companies make it common practice to run credit checks, especially for job positions handling money and/or sensitive, personal information. In fact, many run credit checks as a predictor that if an applicant successfully manages their own money, it’s a sign that he or she will make good, ethical decisions in the workplace.

A 2018 HR.com survey of HR professionals reported that just over 30% of companies performed credit checks on at least some of their applicants, if not all. Of course, if you’re not already running credit checks, we always recommend you check with your legal resource to confirm any limitations in your area for doing so.

Let applicants know what information is available during a credit check.

Your applicant just dazzled you with an impressive interview. You think it could potentially be a great match, and hopefully for many years to come. You may even be considering a conditional job offer. Now, it’s time to share that you run a pre-employment credit check as part of your company’s overall background screening—and here come the questions. No worries, this is what you do best. Take a moment to let them know what is, and isn’t, part of the credit check:

  • First, and probably most important to your applicant: the credit check doesn’t include a credit score. The credit score isn’t provided as part of a pre-employment credit check.
  • The report will show open accounts (without actual account numbers), payment history, outstanding balances, and open credit amounts. You’ll also have access to information about accounts in collections, negative payment history, and credit to balance limits ratio—unfortunately known as red flag items that illustrate credit issues.
  • The credit check is known as a soft hit, which will have no impact on the applicant’s credit score. Hard hits, like inquiries run for purposes of a loan offer or credit extension, can potentially impact a credit score.

Now, pretend you’re the applicant. How’s YOUR Credit?

Applicants may have asked you how they can improve their credit score. As an HR professional, it certainly helps to have a few key pieces of advice on hand. Or, perhaps this has you now thinking about your own credit history. Because who knows, perhaps someday you might be an applicant about to land your next dream job!

  • Top Tip: Regularly review your credit report for inaccurate information. You may already know, but it bears repeating that you can obtain a free credit report from all three credit bureaus at annualcreditreport.com. You’re entitled to one free report per year from each bureau (TransUnion, Equifax, and Experian). If you spread that out across the year, it would mean you could go to one of the three bureaus every four months for your report.  
  • If you find inaccurate information, it is critical to immediately dispute it with the credit bureaus. Keep in mind that applicants finding inaccurate information may also reach out before a credit check to let you know they are currently disputing information. And, while it may be a little “too much information,” know that applicants may let you know their credit troubles are the result of a particular hardship—like a divorce, family death, or other life event.

The bottom line, pre-employment credit checks can be a valuable tool to understand your applicants’ approach to money management, as well as their potential to make appropriate decisions in their roles within your organization. As an HR professional, it’s also a great opportunity to help ensure you’re making informed employment decisions for the safety and well-being of your organization.