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Compliance Clips for January 2022

GENERAL INFORMATION

Equal Employment Opportunity Commission Initiative
A new EEOC initiative will focus on fairness, guidance, and federal regulation compliance regarding artificial intelligence and other emerging technologies used by employers throughout the employment process. The use of AI and algorithmic tools have become more prominent as employers work to streamline hiring workflow, and the EEOC is preparing a mandate to not just provide ongoing guidance against workplace bias, but also ensure that companies using AI tools during employment decisions comply with present and future federal civil rights and antidiscrimination laws.
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Employment Advertising in California

California employers take note: A new Department of Fair Employment and Housing initiative will focus on uncovering violations of the Fair Chance Act by using technology to identify discriminating content within employment advertising. For example, The Fair Chance Act bans general “criminal history” statements in a job advertisement such as “No Felons” or “Must Have Clean Record.” Utilizing technology to conduct mass searches of online job ads for statements violating the Fair Chance Act have already led to the identification of hundreds of violations in a single day of analysis. DFEH will continue to document violations and send notices requiring employers to remove unlawful statements.
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Michigan Date of Birth Redaction

As previously shared, a new Michigan rule—initially scheduled to go into effect by January 1, 2022—would have begun a process of removing date of birth (DOB) from public facing court records.

This of course would have all but eliminated the ability of background screening companies to conduct background checks for Michigan businesses. At best, it would make background screening in Michigan quite cumbersome and time consuming for both Credit Reporting Agencies and their customers. Fortunately, and after months of negotiation, the Michigan Supreme Court amended its personal identifying information (PII) court rule impacting background checks—creating an “authorized user” approach for access to PII in court records.

This solution is intended to balance protection of personal identity with the need of background companies to access information within records to verify identity.  The court rule will now go into effect on April 1, 2022. We will continue to monitor developments on this issue up to April 1, 2022, and keep you updated as more information becomes available.
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I-9 AND E-VERIFY

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

Because of ongoing COVID-19 precautions, remote I-9 document review has been extended; the expiration date for these accommodations is now April 30, 2022.

UPDATE: The DHS is currently exploring the possibility of making the remote document verification option for Form I-9 permanent. This is welcome news as many trend toward permanent hybrid work solutions, and is encouraging that the government is closely following workplace trends and is willing to take a look at updating the Form I-9 process. We will keep a close eye on this and let you know as more becomes available.
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SUBSTANCE ABUSE TESTING

Philadelphia, PA

Effective January 1, 2022, new legislation in the city of Philadelphia, PA, now prohibits employers from testing candidates for marijuana as a condition of employment. The law states that except as provided in exceptions—law enforcement, commercial driving positions, supervision of children or vulnerable individuals—it is unlawful for an employer, labor organization, or employment agency to require marijuana testing when making employment decisions. Employers should review their current drug and alcohol testing policies for compliance.
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Montana
Recreational marijuana becomes legal in Montana beginning January 1, 2022. Employers, please note that the new bill considers marijuana a lawful product, and employment decisions cannot be made based on cannabis use during nonworking hours. Employers are encouraged to review their policies regarding marijuana and drug testing.
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DATA PRIVACY

Nationwide

Will 2022 be the year for a national privacy law? Perhaps, or perhaps not, but there are many proposals at state and federal levels to negotiate what key issues should be part of such legislation. Of much interest is focus on congressional efforts in tandem with action at the state level, employment discrimination based on use of IA and big data, and concern in the EU with data transfer to the United States. Much more to come!
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Questions? We’re here to help!

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In the Know: December 2021 Compliance Clips

CONSUMER REPORTING

PBSA Reports Positive Progress Regarding Michigan Date of Birth Redaction
As previously shared, a new Michigan rule, scheduled to go into effect by January 1, 2022, would remove date of birth (DOB) from public facing records.

The Professional Background Screening Association (PBSA)—an important, non-profit organization established to represent the interest of companies offering employment background screening services—along with many industry allies, have been actively advocating to retain the DOB within Michigan court records as a critical identifier in accurate, comprehensive background screening.

A recent PBSA Advisory reports that the Michigan Supreme Court has officially adopted a negotiated court rule on Michigan redaction on Monday, December 6th, 2021.

Key elements of the rule are:

  1. Definition of what constitutes “consent” for purposes of background screening.
  2. Outlining a registration process for Michigan members as well as requirements for proof of liability insurance. This proposed registration would need to be verified every 6 months.
  3. Moving the effective date of these new procedures from January 1, 2022, to April 1, 2022.
  4. There is a public comment period in the new rule which will close on April 1, 2022.

The adopted rule addresses complaints about the original proposed rule (ADM File No. 2020-26), which would have barred the display of DOB in court records throughout Michigan. We will continue to monitor developments on this issue up to April 1, 2022, and keep you updated as more information becomes available.

CFPB Advisory Opinion on Name Only Matching
On November 4, the Consumer Financial Protection Bureau (CFPB) issued an advisory opinion, stating that a consumer reporting agency (CRA) engaging in name-only matching violates the Fair Credit Reporting Act’s (FCRA) reasonable procedures requirement, 15 U.S.C. § 1681e(b). This opinion regarding the production of consumer reports stresses the importance of ensuring accuracy in the process. Specifically, that matching on name only very likely leads to report inaccuracies because thousands of consumers share first and last name combinations. These inaccuracies, as stated in the opinion, could also put Hispanic, Asian, and Black consumers at greater potential risk for inaccuracy due to lesser last name diversity among these populations. Here at A-Check Global, we take note of these positions and strive to maintain compliant, accurate policies that mitigate risk during the background screening process.
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I-9 AND E-VERIFY

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

UPDATE: On Monday, October 25, 2021, the DHS announced they are seeking public feedback on the possibility of making the remote document verification option for Form I-9 permanent. This is welcome news as many trend toward permanent hybrid work solutions, and is encouraging that the government is closely following workplace trends and is willing to take a look at updating the Form I-9 process. We will keep a close eye on this and let you know as more becomes available.
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CRIMINAL HISTORY REPORTING

California’s Fair Chance Act and Job Advertising
The Fair Chance Act—known commonly as California’s Ban the Box law—restricts employers with 5 or more employees from requesting criminal conviction history from job applicants (in advertising, applications, or during a job interview) prior to a conditional employment offer.

Recently, California’s Department of Fair Employment and Housing has promoted enforcement of the Fair Chance Act by introducing tech efforts to correct violations in online job postings. Put simply, mass searches through online job listings identify prohibited statements such as those prohibiting employment to anyone with a criminal conviction history. In just one day, they found 500+ job advertisement violations!
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University of Michigan
The University of Michigan removed questions asking applicants about criminal history from the application process. Inquiries are now part of the pre-employment background screening conducted after a contingent job offer. While answering “yes” to criminal history questions on a job application did not automatically disqualify previous applicants, the question in and of itself likely deterred qualified applicants from applying.
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SUBSTANCE ABUSE TESTING

New York
The New York State Department of Labor recently issued guidance to address questions regarding recreational cannabis use by employees in and outside of the workplace. This guidance is intended to provide details regarding common scenarios and questions regarding adult-use cannabis and the Marijuana Regulation and Taxation Act (MRTA). In short, New York labor law states that cannabis used in accordance with New York state law is legal—and as such, employers are prohibited from discriminating against employees based on the employee’s use of cannabis outside of the workplace, outside of work hours, and without use of the employer’s equipment or property. That said, there are employer actions permitted, such as when an employee, while working, manifests specific symptoms that impair performance or interfere with workplace safety. Time for employers to review policies and practices to ensure compliance.
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DATA PRIVACY

Nationwide
As more U.S. states—and even the federal government—consider privacy law, notable trends may continue to influence legislation: concern for targeted advertising, further definition for sensitive information, even how GDPR can continue as a key model for lawmaking. Recently, U.S. Representatives have submitted the “Control Our Data Act” privacy bill, which looks to have provisions very much like GDPR—required notice, consumer right to delete information, retention limits, information security measures, and more.
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Questions? We’re here to help!

Featured

In the Know: November 2021 Compliance Clips

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) have been extending the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19.

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.

UPDATE: On Monday, October 25, 2021, the DHS announced they are seeking public feedback on the possibility of making the remote document verification option for Form I-9 permanent. This is welcome news as many trend toward permanent hybrid work solutions, and is encouraging that the government is closely following workplace trends and is willing to take a look at updating the Form I-9 process. We will keep a close eye on this and let you know as more becomes available.
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Substance Abuse Testing

Pennsylvania
Pennsylvania lawmakers are joining forces to assemble bipartisan legislation proposals for marijuana legalization. In a legislation memo, it was stated that, “Enforcing and continuing to enforce drug laws prohibiting possession of small amounts of cannabis, we are clogging our court dockets, overcrowding our prisons, and holding down individuals and communities in most need of support, opportunity, and investment.”
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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

Orange County, Florida
Beginning October 2021, job applicants with Orange County, Florida government are no longer asked on initial job applications if they have criminal convictions or criminal history. Officials hope this change will provide greater employment access for those with a criminal record and provide opportunity for residents in underrepresented communities.
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Data Privacy

Nationwide
As more U.S. states consider privacy laws, notable trends may continue to influence legislation: concern for targeted advertising, further definition for sensitive information, even how GDPR can continue as a key model for lawmaking. The recently passed privacy laws in California, Colorado, and Virginia differ significantly, notable trends from these privacy laws are likely to influence legislation in other states.
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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.
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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

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.
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Questions? We’re here to help!