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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!

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A-Check Global update: Serving our clients through the pandemic, worldwide labor shortages, and more.

While ongoing, challenges due to COVID-19, natural disasters, and workplace staffing issues make this a difficult time for many companies to perform at full capacity, we wanted to provide a quick update regarding A-Check efforts to further improve client support and background screen turnaround time.

As we slowly transition out of the pandemic, our valued clients have continued to hire, and as your screening partner, A-Check has remained committed to ensuring your needs are met. Our primary goal is to serve you to the best of our ability, and we humbly acknowledge that A-Check has experienced delays in processing time. That said, we are working daily to overcome these issues, and we truly appreciate the continued trust you have put in our partnership now and in the future.

Drug Testing

A-Check is working closely with our nationwide laboratory partners to further improve client support:

  • Additional software technology has enhanced our connection with labs, and is now greatly accelerating the turnaround and file closure time for “negative” drug testing results.
  • Lab updates within applicant files on A-Check Direct (ACD) now provide far greater transparency to both A-Check and clients—including collection status, specimen in transit, specimen in process, and more.
  • And coming soon—A-Check is implementing the ability within ACD for clients to self-schedule applicant drug testing (and appointment extensions) within seconds.

While our partner laboratories and specimen collection centers are operational, delays can occur in large part due to a significant increase in both new testing requests (as a result of new hiring) and applicant appointment rescheduling. And, due to high volume, labs are experiencing temporary processing delays of up to a week or more when performing follow-up specimen testing. For negative testing results, normal turnaround time remains 24-48 hours.

To combat these issues, labs are currently hiring and training lab employees for additional processing shifts. Likewise, investments in testing technology is allowing for increased specimen processing volume and should help improve overall turnaround time.

Verification

Due to ongoing, global school and company closures, A-Check continues to experience a heavy backlog of verification requests.

Please keep in mind that while we may be emerging slowly from the pandemic, the impact is still very real. Schools are not fully re-opened, and as a result, third party online services for education are delayed because they are dependent on school support.

Many employers are still remote, understaffed, or even worse, have sadly closed forever. In many cases, verification now often includes reaching out for documentation or additional research.

Criminal Records

A-Check is working with a number of partner vendors to further streamline our processing and client support:

  • We are further automating database searches to not only accommodate the current increase in client requests, but also significantly reduce turnaround and file closure time for record searches.
  • We are updating vendor integrations to take advantage of process efficiencies and advancements in data security.

Please keep in mind, A-Check Global continues to focus on and participate in continued efforts surrounding new Michigan and California legislation removing the date of birth (DOB) from public facing court records. This legislation has already begun to hinder the background screening industry’s ability to serve, and we predict that it will be some time yet before viable solutions are in place.

In spite of research challenges we face in Michigan and counties within California, we will continue to serve our valued clients to the best of our ability.

A-Check and Labor Shortages

Hiring and retaining top talent is always a priority at A-Check. While our goal is to implement technology and process efficiency to meet your needs, it’s equally important that we are here to answer your calls with personal service.

  • We are expanding our recruiter footprint beyond California to other U.S. states for administration, infrastructure, and client support positions.
  • Our recruiters are connecting with organizations like military groups and others to attract top talent. We are also working to promote A-Check to those who are skilled but underemployed in our communities.
  • Attractive referral programs (friends and family) are available to our employees.
  • Our staffing efforts are concentrated on employee engagement, efficiencies in onboarding, and increased mentoring during the first 90 days to improve overall employee retention.
  • And last but not least, we are focused on enhancing process automation and further integrating with our many data providers.

That said, even with delays we might experience, A-Check is here to help your business succeed. Please don’t hesitate to reach out if you have any questions.

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Ban the Box: 20+ Years of Fair Chance Legislation

It all began more than 20 years ago, when Hawaii became the first state to officially pass Ban the Box legislation—law designed to provide those with criminal history a better chance of earning employment without having their misdeeds prevent access to job opportunities.

From its humble beginning as a grassroots, civil rights movement borne of All of Us or None, evolving legislation to provide applicants with fair chance quickly gained momentum nationwide. As law is generally applied today, Ban the Box prohibits certain employers from making criminal history inquiries until a later point during the application and employment process. Ban the Box laws typically:

  • Restricts employer inquiries prior to an applicant’s job interview or even a conditional offer of employment
  • Sets guidelines for how far in the past criminal history may be requested
  • Prevents job position ads from excluding applicants with criminal history

Legislation Today

20+ years later, this growing legal trend to lower barriers faced by job applicants with criminal records has progressed past the removal of an application’s “box,” to now include additional procedures designed to force employers to look past an applicant’s criminal history when making a hiring decision.  Additional requirements are unique to jurisdictional law, but most share a common theme:

  • Remove the check box from the application
  • Wait until further along in the hiring process to ask an applicant if they have a criminal history (this includes requesting a background check), for example, post interview or post offer
  • When making an adverse decision based on an applicant’s past criminal record, provide the applicant with specific details on what part of their background check caused the adverse decision, the business necessity for the decision, and in some cases, your company’s policy regarding the hiring of applicants with a criminal history

37 states, the District of Columbia, and over 150 cities and counties have adopted Ban the Box

With representation across nearly every portion of the country, 37 states now include guidelines for public-sector employment. These states include:

Arizona, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Utah, Vermont, Virginia, Washington, and Wisconsin.

Further, extending fair chance law beyond government employment to private-sector employment helps ensure applicants with criminal records have a fair chance at employment across the majority of jobs. To date, fifteen states and 22 cities and counties have passed legislation to remove criminal history questions from job applications for private employers. States include:

California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.

Putting this all into perspective, it means that more than 267 million people—that’s more than four-fifths of the U.S. population—now lives in a jurisdiction with some form of fair chance law or policy.

Ban the Box and Your Employment Background Screening Program

Now, keep in mind that this evolving legislation regarding fair chance hiring does not prohibit your organization from performing criminal checks as part of your employment risk mitigation. It simply means that criminal history inquiries must be delayed until further in the hiring workflow. And, in addition to removing the “box” from employment applications, employers may be required to ask about criminal history either after an interview is completed, or after a conditional offer has been made.

As an HR professional, there’s a lot to consider (or continue to consider) as you navigate applicable Ban the Box legislation:

  • Audit your workflow. That will mean meeting regularly with your legal counsel to ensure your employment applications, related forms, and your overall hiring program is compliant.
  • While you’re at it, keep your legal counsel on speed-dial to ensure you’re updated with changes in legislation and fair chance policy. If you live in a state that isn’t impacted by Ban the Box law, it may not always be the case.
  • Take a look at job roles in your organization to further define where certain criminal history would pose increased risk among certain positions or your workplace as a whole. Likewise, there may be minimal risk opportunity within areas of your organization to extend employment to ex-offenders. This may be a good time to audit position definitions.
  • And finally, make sure you’re partnered with an employment background screening company (like A-Check Global) with updated compliance resources to help you navigate fair chance legislation and assist you in extending equal hiring practices to your applicants.

Please keep in mind that this Blog article is general in nature, and not all-inclusive in listing jurisdictions with Ban the Box law. Here is a complete listing of U.S. Cities, Counties, and States Adopting Fair-Chance Policies.

Please also note that A-Check provides a monthly compliance newsletter to keep you in the know with Ban the Box and other legislation updates, and we’d welcome the opportunity to add you to the mailing list. Simply email us at marketing@acheckglobal.com and let us know you’d like our compliance updates.

And, as always, we welcome your questions about this or any aspect of your background screening program. Please feel free to contact us.

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PBSA Testifies in Michigan Hearing on Date of Birth Redaction

A-Check Global continues to focus on and participate in continued efforts surrounding new Michigan legislation removing the date of birth (DOB) from public facing court records. As previously shared, this new rule is scheduled to go into effect by January 1, 2022. However, some courts have already been implementing DOB redactions as earlier adopters of the rule.

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

On Wednesday, October 13, the Michigan House Judiciary Committee held a hearing regarding Michigan House Bill 5368 (Requirement for date of birth to be included in publicly accessible “personal identifying information” in court proceedings.) In this hearing, PBSA past chair Bon Idziak testified on behalf of PBSA as part of persistent efforts to ensure access to date of birth information in public records in Michigan. Others testifying included Lucia Bone on behalf of the Sue Weaver CAUSE, Jay Harris on behalf of CDIA, as well as several other proponents of the legislation.

PBSA will continue to pursue all available options to address current and upcoming redaction in both Michigan and California. A-Check will continue to provide information and requests for assistance as it becomes available. As you might imagine, these efforts are significant, and will require continued engagement.

Please also note that A-Check has not changed our standard processes for criminal record searches. Prior to presenting permissible results to our clients, we still require 3 identifiers to authenticate the identity of search information. In spite of research challenges we face in Michigan and counties within California, we will continue to serve our valued clients to the best of our ability.

We’re here to help answer any questions you may have.