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Compliance Clips for January 2023

CONSUMER REPORTING AND EMPLOYER COMPLIANCE INFORMATION

New York City Pay Transparency
Hey NYC, you’re on the way! Within weeks of the city’s pay transparency law going into effect, a recent report found that 60% of job listings in New York City now included employer-provided salaries. This is a big step toward closing pay gaps and disparity between job applicants. Now, with January 1, 2023 behind us, California- and Washington-based companies with 15 or more employees must disclose salary ranges for their open positions, and Washington employers are also now required to provide details on benefits or additional compensation.
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Diversity and Inclusion
Here’s a very interesting read about proactive leaders who are choosing Diversity Audits to uncover hidden biases that may be limiting their ability to hire and retain top talent. This isn’t necessarily a compliance requirement, but an intriguing reminder that your job candidates can construct an impression of what your company might be like to work at before even interviewing or visiting your office. There are hundreds of online data points that paint a picture, from a Google search, company reviews, and even language used on your career page. As the hiring landscape quickly changes, many companies are holding up mirrors to get a better look at how they present themselves.
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I-9 INFORMATION

Document Review Flexibility
We know we sound like a broken record, but yes, another extension has been implemented for document review flexibility. The U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) have extended until July 31, 2023, the in-person Form I-9 compliance flexibility. This flexibility allows employers whose workforce is working remotely to defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9) and section 274A of the Immigration and Nationality Act. While DHS may be considering more permanent changes to the remoted examination of documents, for now, this flexibility is still described as temporary.
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I-9 and E-Verify Updates
Here are five I-9 and E-Verify updates from 2022 that employers should know about as we move further into the new year. For 2023, compliance changes may potentially include a streamlined one-page Form I-9, new remote document review rules, and likely increased ICE I-9 audits. Employers: the takeaway here is to conduct regular internal audits of your I-9s as soon as possible with the help of immigration counsel. Additionally, plan to conduct I-9 training for employees who help ensure I-9s are filled out correctly.
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SUBSTANCE ABUSE TESTING

Nationwide
To test or not to test? Marijuana legalization efforts may lead employers to question whether or not they’re required to test for marijuana. Here at A-Check Global, we’re here to help you determine what type of drug testing policy may be best for your business goals. While federal contractors and businesses that employ certain regulated professionals in safety-sensitive positions are required to test workers for marijuana, other sectors must navigate a maze of jurisdiction regulations. That said, legalization legislation generally permits employers to maintain policies prohibiting substance use and impairment while on the job. Proving an employee is “under the influence” is quickly becoming a key element of most drug testing policies and has resulted in increasing workplace policies designed to protect employees and companies when there is reasonable suspicion an employee is under the influence while working.
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Nationwide
As blanket pardons for low-level marijuana offenses gain momentum, be sure to review your policies on criminal record reporting, especially records that have been sealed, expunged, or pardoned. On October 6, 2022, President Biden issued a blanket pardon to all citizens and lawful permanent residents convicted of simple possession of marijuana under the federal Controlled Substances Act. President Biden has urged governors to follow suit, and some states have begun to explore the idea of pardoning non-violent marijuana crimes. Many states and cities already have significant Ban the Box laws in place to protect job applicants, and many states limit an employer’s ability to make decisions or even inquire about offenses that have been sealed, expunged, or pardoned, even if they appear on a third-party background check. At A-Check Global, we’re here to help, but also recommend that you consult with counsel to determine whether existing background screening policies need to be updated or modified.
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Please keep in mind that A-Check Global is always here to help as you determine the course of your own employment drug testing.

BAN THE BOX

Connecticut
On January 1, 2023, a new Connecticut law went into effect—The Clean Slate Law—further prohibiting employers from discriminating against individuals based on an individual’s erased criminal history information. In addition to being barred from discriminating with respect to erased criminal records, the law expressly prohibits employers from discriminating against individuals in compensation or in the terms, conditions, or privileges of employment based on an individual’s erased criminal history information.
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CONSUMER PRIVACY AND DATA PROTECTION

Nationwide
Twenty-eight states introduced a total of 54 Consumer Data Privacy bills in 2022. This quick look shows what’s now in place and what privacy legislation is coming in 2023. Much of this upcoming legislation includes important consumer data protection including the right to access, correct, delete, and export covered data, and to opt out of certain transfers of covered data. And it stands to reason that with the prospect of a federal consumer data privacy law lagging, 2023 may show effort in this area by state legislatures and state and federal regulators. Again, we recommend that you speak with counsel to help ensure your company is in compliance with data security guidelines currently in place.
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Questions? We’re here to help!

Featured

Here to Help: A-Check Global is a Leading Provider of Workplace Safety, Drug, and Alcohol Screening Services

First things first, and from our family to yours: Wishing you a healthy, happy, and prosperous New Year. Here’s to 2023!

That said, it’s an honor to serve our clients, and we look forward to being your trusted business partner for years to come. If you’ve got questions about your background screening program, we’re here to help—and to also let you know that A-Check is much more than just background screening. We also proudly support our clients with domestic and international drug testing, occupational health screening, on-site immunization services, and much more.

Protect Your Company and Your Employees

When it comes to the safety, productivity, and wellness of your workforce, drug screening and workplace medical services play an important role in helping you maintain a healthy organization. A-Check Global provides everything you need to get a comprehensive program up and running.

How Drug and Alcohol Abuse Impacts Your Company

It’s no secret that drug and alcohol abuse costs countless dollars each year in unexcused absences, higher turnover rates, even increased workers’ compensation claims. The National Council on Alcoholism and Drug Dependence (NCADD) reports employees with alcohol problems were 2.7 times more likely to have injury-related absences. Additionally, 70% of estimated 15 million American drug users are employed.

The workplace can be an effective channel to promote programs and policies focused on improving health and wellbeing as well as protecting your workplace, your employees, and your brand culture. If you haven’t talked to us about these services before, we’re here to answer any questions about your program’s convenience, compliance, and affordability.

Our Comprehensive Suite of Services

Whether you’re looking to expand your background screening program—or perhaps looking for on-site medical services as you bring employees back to the office in 2023—we’re just a phone call away and welcome the opportunity to assist.

Drug and Alcohol Screening

  • Nationwide Network of Collection Service Centers
  • MRO Services
  • Automation and Self-Service Convenience to Reduce Turnaround Time
  • Dedicated A-Check Support Team 24/5

On-Site Services

  • Random Program Management
  • Immunization/Vaccination
  • COVID Testing
  • Instant Drug Screening and Post Incident

Occupational Health

  • DOT/NDOT Physicals
  • TB Testing
  • Audiograms
  • Pulmonary Function Testing

Meeting Your Unique Needs

  • DOT Regulated and Safety Sensitive
  • Serving Marine, Aviation, Government, Healthcare, Manufacturing, Hospitality, and more

As a response to our nation’s ongoing alcohol and substance abuse challenges, we’re here to help ensure your workplace and workforce remains safe and productive. Please don’t hesitate to reach out.

We’re here for you!

Featured

Compliance Clips for August 2022

CONSUMER REPORTING AND EMPLOYER COMPLIANCE INFORMATION

EEOC ADA Guidance
Under the EEOC’s newest guidance, employers can be liable for violating the Americans with Disabilities Act if artificial intelligence technology used to make employment-related decisions discriminates against individuals with disabilities. While employers are increasingly using AI decision systems for hiring and evaluation, it might be surprising to learn that these tools may unknowingly lead to discrimination. Specifically, there may be failure to provide reasonable accommodations to individuals with disabilities, or worse yet, there could be potential to screen out individuals with disabilities. The EEOC recommends making the hiring process transparent by providing instructions for accommodation that are easy to find and follow.
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FCRA Litigation
Let’s work together to help minimize the risk of class action FCRA lawsuits. Employers must provide job applicants with a standalone disclosure stating the employer may obtain the applicant’s consumer report when making a hiring decision. In the case discussed here, it was alleged that an employer willfully violated the FCRA by providing candidates with disclosure that included extraneous language not related to consumer reporting.
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It’s because of cases like these that A-Check Global maintains a sharp focus on background screening compliance. We routinely ask that our valued clients check, double-, and triple-check to ensure that your employment consumer reporting is FCRA compliant. When an employer uses a third party (like A-Check Global) 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.
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I-9

I-9 Deadline
A quick reminder that the employer deadline was July 31, to update expired List B (proof of identification) with current proofs of identification for employees hired between May 1, 2020 and April 30, 2022 who presented an expired document. The Department of Homeland Security (DHS) adopted the temporary policy flexibility in response to challenges employers faced with renewing these documents during COVID. Now that document-issuing authorities have reopened and/or provided alternatives to in-person renewals, the DHS ended this flexibility May 1, 2022, and employers must once again accept only unexpired List B documents.
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SUBSTANCE ABUSE TESTING

California Law
Recently, the Ninth Circuit Court of Appeals ruled that under California law, job applicants were not entitled to compensation or travel expenses for the time required to take a pre-employment drug test. It is worth noting that this case is limited to pre-employment drug testing. It does not discuss drug testing for existing employees. The compliance reminder here—for those employers including drug testing as part of the employment process—is to ensure you make it clear to your candidates that any employment offer extended is contingent upon passing a pre-employment drug test.
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Drug Testing Analysis
Drug test positivity reaches highest level in two decades, as reported by Quest Diagnostics. According to drug testing analysis based on more than 11 million drug test lab results conducted throughout 2021 by Quest Diagnostics, the rate of drug test positivity across the combined U.S. workforce hit a two-decade high last year. This is 30% higher than recorded all-time lows in 2010-2012, bringing added recruiting complexity to HR professionals hiring for safe, healthy workplaces. The Quest Diagnostics Drug Testing Index Analysis looks at the combined U.S. workforce including private employers with company testing policies, as well as federally mandated, safety-sensitive positions such as federal employees and transportation positions like pilots, forklift operators, etc. The overall positivity rate for this combined workforce was 4.6% in 2021, up from 4.4% in 2020. In comparison to just a decade ago between 2010 and 2012, overall positivity was 3.5%.
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Washington D.C.
The Washington, D.C. city council passed the Cannabis Employment Protections Amendment Act, with employment protection for recreational and medical marijuana use. Congress has 60 days to review this act before becoming law. The Cannabis Employment Protections Amendment Act prohibits employers, with certain exceptions, from refusing to hire, terminating from employment, suspending, failing to promote, or otherwise penalizing due to an individual’s use of cannabis.
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Please keep in mind that A-Check Global is always here to help as you determine the course of your own employment drug testing.

Questions? We’re here to help!

Featured

Compliance Clips for July 2022

CONSUMER REPORTING AND EMPLOYER COMPLIANCE INFORMATION

Nationwide Credit Reporting
The three major credit bureaus announced that beginning July 1, 2022, paid medical collection debts will be removed from consumer credit reports, and the time period before unpaid medical debts are reported increases from six months to one year. Additionally, in the first half of 2023, it has been announced that medical collection accounts $500 and under will no longer be included in a consumer credit report. While these changes don’t and won’t eliminate medical debt from credit reports entirely, the three credit bureaus—Equifax, Experian and TransUnion—do note that they anticipate as much as 70% of consumer medical debt will be removed from credit reports. Please keep in mind that for those consumers who have medical debt on a credit card, that will continue to exist as credit card/loan debt until paid.
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Nationwide EEOC Guidance
New EEOC guidance for employers using AI during hiring: AI can potentially discriminate against applicants with disabilities. On May 12, 2022, the Equal Employment Opportunity Commission issued a new comprehensive “technical assistance” guidance entitled The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees. As referenced in this guidance, the “screen out” problem of AI rejecting applicants who would otherwise qualify for the job with reasonable accommodation is addressed. Under the ADA, a screen out is unlawful if the tool screened out an individual who can perform essential functions of the job with a reasonable accommodation. Employers should proactively manage risk by addressing unintended results from AI technology and communicate up front the knowledge, skill, ability, education, experience, quality, or trait that will be measured or screened with the AI tool. All while further empowering applicants to share if they feel some disability accommodation will be needed.
READ MORE

FCRA Compliance
It’s always a good time to check, double-, and triple-check to ensure that your background check consumer reporting is FCRA compliant. When an employer uses a third party (like A-Check Global) 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.
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Pre-Adverse Action Requirements
While the case in this example was a win for the employer, it’s a great reminder that compliance with FCRA law at every step of the background screening process can help minimize risk from costly litigation. If an employer decides to rescind an offer based on information from a report—a criminal conviction in this case—then before taking adverse action the employer must provide the applicant with: (1) a copy of the background check and (2) a written summary of consumer rights. The prospective employee then gets a reasonable amount of time to dispute the accuracy of the report. While this employer did not provide the report before rescinding the offer, the applicant’s suit did not prevail under FCRA because they do not have the right to dispute accurate—but negative—information found on the report.
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SUBSTANCE ABUSE TESTING

Washington D.C.
If approved and signed into law, Washington, D.C. will join an increasing number of state and local jurisdictions restricting employers from testing employees for cannabis use as a condition of employment. The bill applies to nearly all employers in D.C. and under the bill, employers cannot terminate, suspend, fail to promote, demote, refuse to hire, or otherwise penalize an employee or prospective employee based on their cannabis use, their status as a medical cannabis program patient, or the presence of cannabinoid metabolites in their system without additional factors indicating impairment. That said, employers can test and discipline employees in safety-sensitive positions for cannabis use and can test to comply with federal statute, federal regulations, or federal contracts. Employers can also require post-accident and reasonable-suspicion drug testing.
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Please keep in mind that A-Check Global is always here to help as you determine the course of your own employment drug testing.

BAN THE BOX

Federal Employees
We’ll keep an eye on this. Ban the Box regulations—the consideration of an applicant or employee’s criminal history during employment decisions—have been proposed for federal employees, perhaps serving as a model for upcoming regulations governing the consideration of applicant criminal history for federal contractors as well. The U.S. Office of Personnel Management (OPM) proposed initial regulations to implement the Fair Chance to Compete for Jobs Act of 2019 (Fair Chance Act). Initially, as mentioned, these proposed regulations, if adopted, will affect only federal employees.
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Des Moines, Iowa
Although not widely promoted, the city of Des Moines, Iowa, passed a “ban-the-box” law limiting employer inquiries into an applicant’s criminal history until after a conditional offer of employment. The Des Moines city council unanimously passed the ordinance amending municipal code to make it “illegal and discriminatory” for employers to: (1) include criminal history inquiries on an application, and (2) inquire into criminal history or conduct criminal background checks before a conditional offer of employment.
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DATA PRIVACY

Federal Privacy Law Discussion
On June 3, 2022, a bipartisan group of lawmakers published a discussion draft for the proposed American Data Privacy and Protection Act (ADPPA)—momentum in the effort toward a federal privacy law. The ADPPA is a draft bill and is yet to be introduced in the U.S. House or Senate, which means that any provision is subject to amendment. The ADPPA would apply broadly to organizations and businesses operating in the United States and defines consumer protection of “Covered data”—information that identifies or is linked or reasonably linkable to an individual or a device that identifies or is linked or reasonably linkable to one or more individuals, including derived data and unique identifiers. We’ll keep an eye on these efforts and will report progress.
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Questions? We’re here to help!

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Compliance Clips for May 2022

GENERAL CONSUMER REPORTING INFORMATION

Illinois
In compliance news: A former employee in Illinois filed a class action case over a company’s use of voice recognition technology, alleging that the practice violated the state’s Biometric Information Privacy Act. Illinois’ BIPA restricts the use of biometric information and biometric “identifiers,” including retina, fingerprint, voiceprint, hand or face geometry scans. According to this specific lawsuit, it was alleged that voiceprints, archived along with the employee name and employee number, could be hacked, putting workers at greater risk for identity theft.
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Wisconsin
A recent Wisconsin Supreme Court decision may provide some relief to employers by allowing them to consider an applicant’s conviction for crimes of domestic violence as potentially disqualifying for a job opening. Previously, it was argued that the nature of household-related crime is inherently missing from a workplace setting. With this new decision, Wisconsin employers can now more comprehensively assess the actual workplace risk of a job candidate repeating dangerous conduct, resulting in threatened safety of employees, customers, and the public.
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Tips for Background Check Compliance
If you aren’t performing candidate background checks, or worse yet, doing them incorrectly, you could become the defendant in a lawsuit. Here are 6 great tips employers should keep in mind:
1) Checking initially for candidate application errors that can cause potential issues
2) Using an accredited background screening company—like A-Check Global
3) Simplifying your screening process and candidate communication
4) Focusing on FCRA compliance throughout the workflow
5) Reviewing requirements for Ban the Box and other state-by-state legislation
6) And, understanding limitations for credit history and/or salary inquiries
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New York City
Effective May 15, 2022, the New York City Human Rights Law (NYCHRL) will require employers with four or more employees that advertise jobs in New York City to include a good faith salary range for every opportunity advertised. Any advertisement for a job, promotion, or transfer opportunity that can be performed in New York City, whether from the employer’s office or remotely, including from the employee’s home, is covered. Employers must now disclose an expected minimum and maximum salary that they believe at the time of the posting, they are willing to pay for the job, promotion, or transfer opportunity.
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I-9 AND E-VERIFY

REMINDER: List B Document Requirements Beginning May 1, 2022
We mentioned this last month, but it’s worth a quick reminder. Those employers who have accepted expired List B documents should now update their I-9 forms in accordance with DHS instructions that took effect May 1, 2022. The DHS announced that starting May 1, 2022, employers must only accept unexpired List B documents when completing Form I-9. What’s more, employers should audit all Form I-9s completed between May 1, 2020 and April 30, 2022 to determine if any of them need to be updated with a current (unexpired) identity document.
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SUBSTANCE ABUSE TESTING

Nationwide Legislation
In cannabis news we’re keeping an eye on, the House recently passed legislation—with a vote of 220-204—that would legalize marijuana nationwide, while also removing criminal penalties for anyone who manufactures, distributes or possesses the substance. In addition to decriminalizing marijuana at the federal level, the bill would 1) implement a process for expunging previous convictions, and 2) impose a tax, beginning at 5%, on the sale of cannabis products nationwide. The likelihood of passing such a bill in the Senate appears to be low at the moment, but work is being done to overcome hurdles.

To date, thirty-seven states and Washington, D.C. have laws legalizing medical marijuana, with 18 states and D.C. legalizing marijuana for recreational purposes, according to the National Conference of State Legislatures.
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2022 State-by-State Legislation
More than a half-dozen states are poised to enact legislation in 2022 to potentially legalize medical or recreational marijuana. Much of this activity is happening along the East Coast—here’s a quick look at 2022 efforts.
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California
A bill introduced in the California Assembly proposes to prohibit discrimination against employees who use cannabis off the job, but would not permit employees to be impaired by, or to use cannabis on the job. This legislation would not permit an employee “to be impaired by, or to use cannabis on the job” or affect “the rights or obligations of an employer to maintain a drug and alcohol-free workplace, as specified in Section 11362.45 of the Health and Safety Code.”
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Please keep in mind that A-Check Global is always here to help as you determine the course of your own employment drug testing.

DATA PRIVACY

Virginia
Virginia Governor Glenn Youngkin signed three Virginia Consumer Data Protection Act (VCDPA) amendment bills into law. The VCDPA’s text is now finalized in advance of its January 1, 2023 effective date. These bills, as further detailed in the following link, 1) add a new exemption to the VCDPA’s right to delete, 2) repeal the Consumer Privacy Fund provision and, instead, direct penalties, expenses and attorney fees recovered enforcing the VCDPA to a different fund; and 3) modify the VCDPA’s definition of nonprofit.
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 Questions? We’re here to help!