CONSUMER REPORTING AND EMPLOYER COMPLIANCE INFORMATION

California
This recent case, while ruled in favor of the employer, is a great reminder for California (and all) employers to approach background checks very carefully. In this case, the plaintiff alleged the employer violated the FCRA by including additional information in the background consent form, which caused confusion and ultimately led to “injury.” As a reminder, the FCRA requires that an employer provide a “clear and conspicuous disclosure” in writing consisting solely of the disclosure, and that a consumer report may be obtained for employment purposes. Here at A-Check, we see these cases as a perfect opportunity to mention it’s always a good time to review your company’s policies and disclosures to ensure compliance while conducting background checks.
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Job Listing Checklist
Here’s a helpful checklist of things to consider for 2023 updates to your job descriptions. Accurate and current job descriptions can help you minimize litigation risk. Inaccurate job descriptions can cause issues for any employer. A well written, current job description can not only help with employment decisions but can also be evidence of compliance with ADA, FMLA, and FLSA.
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I-9

Employer Reminder: An E-Verify user’s access must be promptly terminated upon separation from your organization. Review and update existing users whenever staffing changes occur and on a regular basis. Failure to promptly terminate user access upon separation is a violation of the Memorandum of Understanding, Article II, section A3 (PDF).
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SUBSTANCE ABUSE TESTING

Missouri
Recreational marijuana is now legal in Missouri. Voters passed Constitutional Amendment 3, decriminalizing the purchase, possession, and use of marijuana for recreational and personal purposes. With this new legislation, 1) Employers may not discriminate against a person in any employment action for medical or recreational marijuana use, 2) Employers may still enforce drug-free workplace rules, including discipline or termination for being under the influence of marijuana at work, 3) Expungement of certain non-violent marijuana convictions may relieve job candidates from disclosing convictions, and 4) Certain regulated industries will remain unaffected by this legislation. That said, please speak with your legal counsel to determine your company’s policy regarding marijuana use.
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Nevada
While Nevada law requires employers to attempt to make reasonable accommodations for its employees’ use of medical cannabis outside of the workplace, employees can sue employers violating that law. In the case illustrated in this article, the Court ruled that legislation does not define exactly what employers are required to do to provide accommodation for medial cannabis. That said, the takeaway is that accommodation could align with other accommodation requests for disability. This includes determining whether 1) The employee can continue to perform essential job duties while using medical cannabis off the premises and 2) The employee’s use of medical cannabis places an undue hardship on the company. Keep in mind that accommodations are likely inappropriate for employees who hold commercial driving or heavy machinery duties. Litigation is of course on the rise. We recommend you speak with your legal counsel regarding accommodation requests.
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Nationwide
Here’s a quick look at where the nation stands with cannabis legalization as well as with existing and potential legislation (California, Illinois and Colorado) to seal or expunge low-level cannabis-related convictions.
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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

Florida
Gainesville is the first city in Florida to pass a fair chance hiring law applying to private employers with 15+ employees. Now, criminal background checks of a candidate are prohibited until after making a conditional employment offer. Employers still have ability to rescind the offer after the background check, but those in favor of Ban the Box practices see hope that delaying that step is a big push toward equity among candidates, helps create a much larger pool of job candidates, and goes far in providing job opportunity for those who have criminal convictions.
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Connecticut
Connecticut employers: The Clean Slate law became effective January 1, 2023, providing for the automatic erasure of misdemeanors and low-level felony records after seven years from the date of conviction. Keep in mind that those convicted of sexual offenses, family violence, and firearm-related crimes are not eligible for erasure of those records under new law. Now that this Clean Slate law is effective, employers should review their employment policies because it is now unlawful and discriminatory to make employment decisions based on erased criminal records. READ MORE

California
California employers: July 1, 2023, SB 731 will provide for automatic sealing of certain felony criminal records, provided sentences, probation, and a 4-year clean record have been fulfilled. Sealing of these records will make them unavailable to most employers through a background search. Please note that defendants with sex offender status are excluded from sealing.
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Minnesota
Minnesota is now considering an extension of their existing Ban the Box legislation to include board and commission positions in Minnesota state government. While earlier legislation banned the box for corporate jobs, it neglected to do so for government positions. This effort hopes to address the issue.
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CONSUMER PRIVACY AND DATA PROTECTION

California
Beginning January 1, 2023, provisions of the California Privacy Rights Act (“CPRA”) went into effect, expanding portions of the California Consumer Privacy Act (“CCPA”). Among key enhancements are 1) Additional requirements are placed on employers when responding to employee inquiries about collection and processing of personal information, 2) Employers will provide employees with an enhanced notice of how employee personal information is handled, and 3) Expanding the definition of personal information to include email addresses when used in combination with passwords or security questions. Here’s a closer look at this updated legislation.
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Questions? We’re here to help!

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.
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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!