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In the Know: October 2021 Compliance Updates

Consumer Reporting

District Court’s FCRA Decision:
Employer Guidance for “Clear and Conspicuous” Disclosure
As you know, before an employer pulls a consumer report for employment background screening purposes, the FCRA requires that the employer provides the applicant with a “clear and conspicuous” disclosure that the employer may obtain this report.

Furthermore, the disclosure document must consist solely of the disclosure. A recent Ninth Circuit Court ruling detailed that even with good will and intention, this disclosure must not include extraneous information—even if the employer believes that information is related to the disclosure.

The court did hold that disclosure may also include some concise explanation of what a consumer report is, how it will be obtained, and the type of employment purposes for which it may be used. However, additional information regarding consumer rights under federal and state law—additional information added in this instance by the employer to the disclosure—was extraneous. This case illustrates just how important strict compliance with the FCRA’s standalone requirement really is.
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California and Michigan Date of Birth Redaction
As we’ve mentioned, efforts in Michigan and a number of California counties to redact date of birth from court cases reported via public indexes make timely employment background screening extremely challenging.

For California: 
A California Court of Appeal decision has unfortunately resulted in CA Courts restricting or limiting in-person research requests, and limiting PII provided for potential record matches. These efforts are being implemented with little notice, and as you can imagine, are having a profound impact in the ability for consumer reporting agencies to efficiently report criminal history.

For Michigan: 
Court rules in Michigan that limit PII provided to researchers are in effect. However, implementation has been delayed until January 2022.

A-Check Global, along with other CRAs, are very involved in working toward any and all potential opportunities for resolution. That said, answers may not be available in the near future. The Professional Background Screening Association (PBSA) Government Relations Date-of-Birth Redaction Task Force is also focused on resolution efforts, and they invite employers to learn about how to support the path toward solutions.
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We’re focused on helping you remain compliant, and always welcome your questions.

I-9 Compliance

Ongoing Extension: Form I-9 Requirements in response to COVID-19

The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, 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, 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

Rhode Island
Could Rhode Island be next? Lawmakers say they are very close to reaching a deal on a marijuana legalization bill that could be taken up during a special session this fall. A-Check will keep an eye out and let you know.
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Connecticut
The Connecticut Governor signed Senate Bill 1201—effective in 2022—making CT the 19th state to legalize recreational marijuana for adults 21 years and older, but will allow employers to continue implementing drug-free employment policies. This new law will require expungement of certain existing marijuana convictions, but also creates employment protections for recreational marijuana users. That said, employers are permitted to continue prohibiting employees from engaging in the recreational use of marijuana, subject to certain statutory requirements.
READ MORE

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. 

Criminal History Reporting

Maine
Governor Mills signed into law LD 1167, “An Act Relating to Fair Chance in Employment.” With this new Legislation, Maine joins a growing number of states in adopting a “ban-the-box” law that restricts employers’ ability to ask job applicants about their criminal history. While there are exceptions, new law prohibits employers from requesting criminal history information on applications or stating that a person with a criminal history may not apply or will not be considered for a position. Employers are also prohibited from stating—prior to determining a person’s qualifications—that candidates with criminal history will not be considered. This new law goes into effect on October 18, 2021, and employers who do not comply with the new law are subject to a penalty of $100-$500 per violation.
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Data Privacy

Ohio
California, Colorado, and Virginia have passed comprehensive consumer data privacy laws. Additional legislation was recently introduced that, if passed, would create the Ohio Personal Privacy Act. By introducing the Act, Ohio follows the growing trend toward stronger state privacy laws related to consumer rights. The Act primarily applies to businesses in Ohio or businesses that collect data about consumers in Ohio, and among other guidelines, dictates that businesses must provide a “reasonably accessible, clear, and conspicuously posted privacy policy” to inform consumers about the data collected.
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Questions? We’re here to help!

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Compliance Clips for September 2021

Checklist of FCRA Requirements
We’ve included this information before, but it’s worth a repeat visit. 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 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.

I-9 COMPLIANCE

Ongoing Extension: Form I-9 Requirements in response to COVID-19
The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, 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, 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.
READ MORE

SUBSTANCE ABUSE TESTING

Connecticut
The Connecticut Governor signed Senate Bill 1201—effective in 2022—making CT the 19th state to legalize recreational marijuana for adults 21 years and older, but will allow employers to continue implementing drug-free employment policies. This new law will require expungement of certain existing marijuana convictions, but also creates employment protections for recreational marijuana users. That said, employers are permitted to continue prohibiting employees from engaging in the recreational use of marijuana, subject to certain statutory requirements.
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California
A U.S. District Court in California held that an employer can condition an offer of employment on passing pre-employment drug screening, including a test for marijuana. In this case, a new employee was terminated for a positive marijuana test. The judge ruled that the employee failed to establish he suffered from a disability given the lack of detail or documentation submitted to the employer—and the employer had established a legitimate, nondiscriminatory reason for the employee’s termination.
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New Jersey
New Jersey’s Cannabis Regulatory Commission released regulations on August 19, governing recreational cannabis use. However, these rules do not yet include standards for employers prior to conducting marijuana drug testing. Marijuana was legalized for recreational purposes in New Jersey in February 2021, including certain protections with regard to off-duty use by employees. Legislation now imposes a new requirement that work-related marijuana testing include a physical examination conducted by an expert—a Workplace Impairment Recognition Expert (“WIRE”)—trained to recognize drug impairment. That said, the Commission did not indicate how long it will take to develop the certification standards or when employers can expect regulations addressing marijuana testing.
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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.

CRIMINAL HISTORY REPORTING

Louisiana
Effective August 1, 2021, Act No. 406 impacts employers conducting background screening prior to a job offer by prohibiting the request or consideration of an arrest record or charge that did not result in a conviction when a background check reveals that information. This legislation also requires employers to individually assess a candidate’s criminal history and determine if the outcome is directly or adversely related to specific duties of potential employment.
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Maine
Taking effect October 18, 2021, Maine joins the growing number of states with new Ban the Box legislation to prohibit employers from requesting criminal history information on initial employment applications. While there are exceptions, new law prohibits employers from requesting criminal history information on applications or stating that a person with a criminal history may not apply or will not be considered for a position. Employers are also prohibited from stating—prior to determining a person’s qualifications—that candidates with criminal history will not be considered.
READ MORE

Questions? We’re here to help!

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Compliance Clips for August 2021

CONSUMER REPORTING

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

Ongoing 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 taking 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 August 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.
READ MORE

CRIMINAL HISTORY REPORTING

Louisiana
Effective August 1, 2021, Act No. 406 impacts employers conducting background screening prior to a job offer by prohibiting the request or consideration of an arrest record or charge that did not result in a conviction when a background check reveals that information. This legislation also requires employers to individually assess a candidate’s criminal history and determine if the outcome is directly or adversely related to specific duties of potential employment.
READ MORE

Criminal Record Screening Policy Review
Now more than ever before, it’s important for employers to review their criminal record screening policies. It’s a balance between compliance with evolving laws, and risk mitigation in hiring practices. Class action plaintiffs’ attorneys have had some high-profile success negotiating settlements, and Ban the Box legislation continues momentum in a growing number of states. Now, when it comes to litigation against background screening efforts, courts can hold that employers are required to prove their criminal record screening policies are not just appropriate as a business necessity, but also prove that these policies accurately distinguish between applicants that do and do not pose an unacceptable level of risk. While we are here to answer any questions you may have, we also strongly recommend you have legal counsel available to guide your screening program decisions.
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New York City
Effective July 29, 2021, New York City’s Fair Chance Act expands the scope of protection for applicants and employees with criminal histories. The FCA prohibits employers from denying employment based on an arrest or criminal accusation by expanding protection to prohibit any inquiry in writing or otherwise about a candidate’s arrest or criminal accusation. These amendments also offer additional candidate protection by expanding the list of information that employers are prohibited from considering, adding additional processes employers must take when presented with certain criminal information, and further clarifying other employer obligations under the Fair Chance Process. Here’s a great read on these amendments.
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SUBSTANCE ABUSE TESTING

Connecticut
The Connecticut Governor signed Senate Bill 1201—effective in 2022—making CT the 19th state to legalize recreational marijuana for adults 21 years and older, but will allow employers to continue implementing drug-free employment policies.  This new law will require expungement of certain existing marijuana convictions, but also creates employment protections for recreational marijuana users. That said, employers are permitted to continue prohibiting employees from engaging in the recreational use of marijuana, subject to certain statutory requirements.
READ MORE

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.

DATA PRIVACY

Colorado
Colorado is the second state this year to pass a law making it easier for consumers to protect personal data online. Colorado’s Privacy Act follows Virginia’s Consumer Data Protection Act (VCDPA) and California’s Consumer Privacy Act (CCPA). Among other things, Colorado’s legislation gives consumers the right to opt-out of targeted advertising and the sale of personal data. It also gives consumers the right to access, correct, and delete personal data collected, provides the right to obtain a copy of personal data in a portable format. Additionally, Colorado’s Act requires that consumers have the ability to opt-out via a universal channel that meets established technical specifications.
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Questions? We’re here to help!

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Compliance Clips for July 2021

I-9 COMPLIANCE

Ongoing 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 August 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.
READ MORE

SUBSTANCE ABUSE TESTING

Alabama
Governor Kay Ivey recently signed Alabama’s medical marijuana law, making Alabama the 37th state to legalize marijuana for medical purposes. That said, employers are still permitted to establish drug testing and drug-free workplace policies. This new law identifies qualifying medical conditions, including but not limited to autism spectrum disorder (ASD); cancer-related cachexia, nausea or vomiting, weight loss, or chronic pain; Crohn’s disease; depression; epilepsy or a condition causing seizures; and HIV/AIDS-related nausea or weight loss. With recently granted access to medical marijuana, this law will not impose new obligations on employers.
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Montana
Montana has legalized marijuana for recreational use, and employers will be prohibited from taking adverse action against employees for lawful use of marijuana outside of work. New law amends the Montana definition of “lawful products” to now include marijuana. That said, employers can continue drug-free workplace policies.
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Philadelphia
The city of Philadelphia recently passed an ordinance prohibiting employers from requiring candidates to submit to pre-employment marijuana testing as a condition of employment, effective January 1, 2022. However, this ordinance does not prohibit pre-employment testing of certain types of employees, including police and other law enforcement positions, any position requiring a commercial driver’s license, and any position that requires the supervision or care of children, medical patients, disabled people, and other vulnerable persons.
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SALARY DISCLOSURE

Connecticut
On June 7, Connecticut’s Governor signed House Bill Number 6380, requiring employers to disclose to applicants and employees the salary ranges for positions. This law also expands prohibition of gender-based pay discrimination. Under this new law, employers are prohibited from failing or refusing to provide the wage range for a position upon an applicant’s request, or for an employee’s position upon the employee’s request. Employers are recommended to consider implementing policies and practices to comply with the new law by its October 1, 2021 effective date.
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DATA PRIVACY

Colorado
Colorado has become the third state in the country to pass a comprehensive data privacy law, joining California and Virginia. The Colorado Privacy Act (CPA) will be effective on July 1, 2023. Similar in nature to California and Virginia privacy laws, the CPA provides extended privacy rights to Colorado consumers: (1) the right to opt out of certain processing of personal data; (2) the right to access personal data; (3) the right to correct inaccurate personal data; (4) the right to delete personal data; and (5) the right to data portability. And, it imposes greater duties on the controllers and processors of those organizations collecting personal data.
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Pennsylvania
Pennsylvania introduced HB-1126, the Consumer Data Privacy Act (CDPA), creating duty for businesses to implement and maintain reasonable security procedures and practices surrounding the protection of consumer information. And, under the CDPA’s private right of action, consumers may obtain statutory damages of not less than $100 but not more than $750 per consumer per incident, actual damages, and injunctive or declaratory relief.
READ MORE

Questions? We’re here to help!

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In 2020, Marijuana Drug Testing Positivity Continued to Increase Among U.S. Workers

Quest Diagnostics—A-Check’s drug screening partner and a leading provider of diagnostic services—released their 2020 Drug Testing Index. It is thought to be the first large-scale national analysis of U.S. workforce drug testing during the COVID-19 pandemic, and includes findings from more than 9 million drug tests performed throughout 2020.

In general, the reported positivity for most drug categories—with the exception of marijuana—remained fairly flat, or somewhat declined, in the combined U.S. workforce. Overall, it was down slightly in 2020 (at 4.4%) compared to 2019 (4.5%). Throughout the safety-sensitive, federally mandated U.S. workforce (based on more than 2 million drug tests), positive drug test results declined from 2.4% in 2019 to 2.2% in 2020.

While COVID-19 altered the workforce landscape last year, the increasing positivity trend in marijuana testing continued, in part due to state-by-state legislation regarding adult medical or recreational use legalization. In the U.S. general workforce, marijuana positivity increased in urine testing (3.1% in 2019 versus 3.6% in 2020), in oral fluid testing (9.1% in 2019 versus 12.3% in 2020) and in hair testing (7.1% in 2019 versus 8.7% in 2020). Worth noting, especially as many companies are now initiating plans to return employees to the office. It’s important for employers to continue considering workforce drug testing as a key effort in maintaining workplace and employee safety.

Here are just a few findings from Quest:

  • While positivity is down for most drug categories, it increased very slightly for ecstasy—an increase from 0.008% in 2019 to 0.010% in 2020. Still, this represents a very low positivity number of 1 in every 10,000 tests overall.
  • Positivity rates declined in federally mandated, safety-sensitive workforce testing categories. Cocaine declined to 0.25% positivity in 2019 versus 0.20% in 2020. Opiates represent a similar positivity decline from 0.26% in 2019 to 0.21% in 2020. In this category, positivity for marijuana did decline very slightly (0.88% in 2019 versus 0.79% in 2020).
  • Marijuana continued increases in the general U.S. workforce, with lower positivity rates in states with only medical marijuana use or no form of legalized marijuana use versus states with legalized recreational statutes.
  • The marijuana positivity rate of post-accident test results grew faster than the rate for pre-employment testing. In 2012 (when the first state legalized marijuana), Pre-employment marijuana positivity was 1.9% and post-accident positivity as 2.4%. Fast forward to 2020, pre-employment marijuana positivity reached 3.7% while post-accident positivity surged to 6.4%.
  • Cocaine positivity was the lowest since 2012 in the general U.S. workforce, falling to 0.22% in 2020 versus 0.27% in 2019.
  • Workforce positivity increased significantly in multiple industries with the Retail Trade sector continuing to top the list. For example, the Accommodations and Food Service category had the highest workforce positivity for marijuana at 6.3%.
  • More Quest insight can be found online within their 2020 Drug Testing Index.

Let’s work together for the continued safety of your workplace

Based on the potential for drug abuse due to ongoing COVID uncertainty, as well as personal and professional life stress, it stands to reason that you continue your company’s focus on workplace safety, as well as all employee health concerns.

Whether you are maintaining a remote workforce well into the future, have begun bringing employees back into the office, or are implementing a business plan that builds on a hybrid workforce (as so many now are choosing to do), screening your employees for substance abuse can greatly help ensure you’re doing all you can to promote a safe workplace and healthy, productive team members.

We welcome the opportunity to discuss your options, what you currently might have in place, or to help you build an effective, compliant drug screening program for your company. We’re here to help, and as always, truly appreciate your call and your business.