Category: Human Resources

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!

Compliance Clips for April 2022

GENERAL CONSUMER REPORTING INFORMATION

Class Action Litigation
Class action suits over alleged, unlawful use of consumer reports are ongoing, and increasing. Let’s work together to focus on your employment program compliance. Unfortunately, FDCPA, FCRA, and TCPA lawsuit filings are higher in January 2022 than January 2021. What’s more, of the approximately 1,053 lawsuits litigants have filed this year, 524 seek a judgement based on FCRA guidelines—representing a nearly 14% increase compared to the same time period one year ago. A sign of things to come, and certainly a reminder to see that your employment recruiting program is compliant. Got questions about background screening? We invite you to ask A-Check! We’re here to help.
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New York’s Fair Chance Act
New employment laws impacting New York employers, including a Fair Chance Act amendment now requiring that criminal conviction history inquiries happen after a conditional offer of employment. That is, after all non-criminal background checks have been completed, and a conditional offer of employment has been extended, a company can conduct a criminal record review regarding the candidate. With any criminal history information reported during this process, the company cannot then withdraw an employment offer unless it is determined that 1) there’s a direct relationship between the candidate’s conviction history or pending charges on the job position, or 2) the company can show that hiring this candidate would introduce unreasonable risk to the safety or welfare of the workforce or general public.
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Wisconsin
A Wisconsin Supreme Court ruling will ease the burden on Wisconsin employers during the employment process, while assessing whether an employee’s or applicant’s crimes are substantially related to a job. The Wisconsin Fair Employment Act (WFEA) prohibits employers from discriminating against applicants and employees on the basis of their arrest and conviction records. In this ruling, while Wisconsin employers must still engage in assessment of an applicant’s or employee’s pending charges or convictions, they no longer need to consider treating domestic violence any differently than other types of charges or convictions.
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I-9 AND E-VERIFY

List B Document Update
The DHS announced that because document-issuing authorities have reopened and/or have provided alternatives to in-person renewals, 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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Form I-9 Document Inspection
ICE has extended its temporary policy allowing employers to inspect Form I-9 documents virtually through April 30, 2022. ICE is also planning a proposed regulation to be published by summer 2022 to set forth guidance for a permanent remote document inspection. 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 developing story.
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SUBSTANCE ABUSE TESTING

Nationwide Legislation
With increasing public and legislative support for marijuana acceptance, 2022 could easily be another busy year for legalization. In fact, more than a half-dozen states are poised to enact legislation in this year to potentially legalize medical or recreational marijuana: Rhode Island, South Carolina, Delaware, North Carolina, Kansas, Minnesota, New Hampshire, and Pennsylvania.

Please keep in mind that A-Check Global is always here to help as you determine the course of your own employment drug testing.
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DATA PRIVACY

Utah
Utah legislature recently passed the Utah Consumer Privacy Act (UCPA). UCPA is a comprehensive privacy bill that shares similarities to the California Consumer Privacy Act (CCPA). If the Governor signs the bill into law, Utah will become the fourth state to pass consumer privacy legislation. This means that businesses with connections to Utah who qualify as an entity covered by the UCPA should prepare to be compliant with the law preferably before but no later than the legislation’s December 31, 2023 effective date.
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Questions? We’re here to help!

Compliance Clips for March 2022

GENERAL CONSUMER INFORMATION

California Redaction of Court Record Information
A-Check Global continues to follow and participate in efforts related to a California ruling to remove date of birth from public records, and we wanted to take just a moment to keep you updated on recent progress surrounding this issue. The Professional Background Screening Association (PBSA)—an important, non-profit organization established to represent Consumer Reporting Agencies offering employment background screening services—continues to vigorously advocate to retain the DOB within California County court records as a critical identifier in accurate, comprehensive background screening. Here’s a quick look at recent developments.
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Class Action Litigation
Class action suits over alleged, unlawful use of consumer reports are ongoing. Let’s work together to focus on your employment program compliance. In this example, a recently proposed class action claims a nationwide home improvement retailer unlawfully used job applicants’ consumer reports to make adverse employment decisions without first providing them with a copy of the report—a violation of the Fair Credit Reporting Act (FCRA). As we all know, the FCRA was designed to provide all consumers a chance to dispute or explain inaccurate or derogatory information reported within a background screen before employment decisions are made. We’re here to help, and welcome questions you have about the compliance of your employment program.
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Illinois Class Action Litigation
In recent privacy news from Illinois: A class action lawsuit alleges a hiring platform using AI to assess candidates during video interviews, illegally collected facial data for analysis, violating the Biometric Information Privacy Act. The complaint claims the company illegally facial data for analysis without receiving written permission by applicants during the job interview process. Further, the complaint claims no publically available guidelines for biometric data destruction exist. As HR professionals and companies align their employment program with evolving technology, it’s important to be vigilant in ensuring compliance.
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2022 Increase in Lawsuit Filings
Unfortunately, FDCPA, FCRA, and TCPA lawsuit filings are higher in January 2022. A sign of things to come, and certainly a reminder to see that your employment recruiting program is compliant. Out of approximately 1,053 lawsuits litigants have filed this year under the aforementioned statutes, 524 seek relief under the FCRA—representing a nearly 14% increase over this time period in 2021. Got questions about the compliance of your background screening program? #askacheck
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I-9 AND E-VERIFY

SUBSTANCE ABUSE TESTING

Nationwide Legislation
With increasing public and legislative support for marijuana acceptance, 2022 could easily be another busy year for legalization. Every year, it’s important for employers to review drug testing policies to take new laws into consideration. Please know that A-Check Global is always here to help as you determine the course of your own employment drug testing, but in the meantime, here’s a quick look back at marijuana law activity—state by state—throughout 2021.
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DATA PRIVACY

New York and New York City
New York City and State have recently passed employee privacy laws. One addressing use of automated decision tools in job interviews, and one addressing electronic monitoring of employee communication.

Automated decision tools: Beginning January 2, 2023, a new law will require employers or employment agencies in New York City to complete a bias audit before using an automated employment decision tool to screen job candidates and existing employees. This is a growing trend, and similar legislation has been passed in Illinois and Maryland to help prevent bias when relying on AI tools.

Employee electronic monitoring: Beginning May 7, 2022, a new law will require employers with a place of business in New York state to notify employees of electronic monitoring when in place. The law covers the monitoring of employee phone communication, email, or internet access. Employers must provide prior written notice of such monitoring upon hiring of an employee.
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Questions? We’re here to help!

IMPORTANT UPDATE: Redaction of Information within California Court Records

A-Check Global continues to follow and participate in efforts related to a California ruling to remove date of birth from public records, and we wanted to take just a moment to keep you updated on recent progress surrounding this issue.

As you know, background check companies—like A-Check Global—rely on searching public indexes for criminal record information in California courts. While a 2021 lawsuit (All of Us or None, v. Hamrick) was brought against the Riverside Superior Court only, the court of appeal’s ruling impacted the majority of California state courts, because the court’s ruling was based on a statewide law: California Rules of Court, rule 2.507.

The Professional Background Screening Association (PBSA)—an important, non-profit organization established to represent Consumer Reporting Agencies offering employment background screening services—continues to vigorously advocate to retain the DOB within California County court records as a critical identifier in accurate, comprehensive background screening. Here’s a quick look at recent developments.

California Judicial Council
In 2021, PBSA made a rules change request to the California Judicial Council requesting clarification that Rule 2.507 allow for the use of date of birth and driver’s license as a search term, or filter to the results returned. PBSA’s request was denied by the Judicial Council in December of 2021.

On February 11, 2022 the Consumer Data Industry Association (CDIA) filed a follow-up request to the Judicial Rules Council to again consider clarification to rule 2.507. CDIA and PBSA have engaged a group of allied associations and organizations and are requesting that they submit letters to the Judicial Council in support of CDIA’s request. The hope is that with this new request, and now that redaction has been implemented in LA County, the Judicial Council will recognize the impact of this issue.

California Legislation
On February 17, 2022, California Senate Bill 1262 was introduced by Senator Bradford. If passed, this bill would require publicly accessible electronic indexes of defendants in criminal cases to permit searches and filtering of results based on a defendant’s driver’s license number or date of birth, or both. Of course, next steps would include working with partner organizations and associations to support this bill through committee and ultimately a vote.

Litigation
PBSA has prepared motions to intervene as a plaintiff in current Sonoma and Merced lawsuits—the goal being to file a cross-complaint against the courts to maintain the status quo and leave the date of birth search fields accessible within indexes on the court websites. PBSA anticipates this effort will be a very long process, lasting throughout 2022 and likely into 2023. They also anticipate there may be additional lawsuits in other California counties throughout 2022, which PBSA will monitor closely.

Here at A-Check, please know that we have not relaxed 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 challenges we face throughout numerous 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.

A Closer Look at Salary Transparency Law for Applicants and Employees

On December 15, 2021, the New York City Council passed legislation—as part of a growing, multi-state/city effort to overcome pay disparity—amending the NYC Human Rights Law to now require that employers disclose salary ranges in job postings. This law, in effect beginning May 14, 2022, will cover all NYC employers with four or more employees, and is just the latest in a quickly growing legislation movement to promote pay transparency across job openings, position transfers, and promotion opportunities.

This wave of legislation—which began years ago with California’s 2018 Equal Pay Act—focuses on employee protection by helping ensure equal work receives equal pay. It’s an important effort, as ongoing research of pay secrecy has shown a disproportionate and negative impact on women and employees of color. What’s more, it’s a shift from an employee’s responsibility to negotiate equitable pay, to an employer’s responsibility to create an equitable culture that promotes fair pay overall.

In tandem with growing legislation prohibiting employers from qualifying job candidates by requesting salary history on applications, pay transparency laws requiring disclosure of salary ranges during the hiring process will continue to gain traction across the country.

For your reference—although it’s a snapshot of legislation as it exists today—here’s a quick look at states and cities that currently require employers to disclose salary ranges to applicants and employees.

California: Equal Pay Act
As stated above, California was the first U.S. state to prohibit employers from requiring prior salary history from applicants. California employers are also required to provide salary ranges upon request from an applicant after the initial interview.

Cincinnati, Ohio: Prohibited Salary History and Use
Effective March, 2020, this ordinance prohibits Cincinnati employers with at least 15 employees to inquire about previous salary history. Additionally, pay scale for the position offered must be provided upon applicant request after a conditional offer of employment.

Colorado: Equal Pay for Equal Work Act
Effective January, 2021, Job advertisements/listings now must include pay ranges and position benefits.

Connecticut: An Act Concerning the Disclosure of Salary Range for a Vacant Position
Effective October 1, 2021, Connecticut employers are now required to provide job applicants with salary range information—prior to an offer—for the position(s) they have applied to, or at the applicant’s request, whichever occurs first.

Maryland: Equal Pay for Equal Work
Effective October 1, 2020, this legislation requires employers to provide a wage range for a position to applicants upon request, and also restricts an employer’s ability to inquire about salary history during the hiring process.

Nevada: Equal Pay Act
Effective October 1, 2021, private employers (and certain public employers) in Nevada will no longer be able to request an applicant’s prior salary history during the application process, and will be required to provide salary/wage information for the position following an interview.

New York City: Amendment to the New York City Human Rights Law
As mentioned above, beginning May 14, 2022, the majority of public and private NYC employers will be required to disclose salary ranges within job postings.

Rhode Island: Rhode Island Equal Pay Law
Taking effect January 1, 2023, upcoming legislation will require employers to provide job applicants pay range information upon request during an interview, as well as to employees when they are moving to a new position within the company. Current employees may also ask for the salary range specific to their position.

Toledo, Ohio: Toledo Pay Equity Act
As the second Ohio city to pass pay legislation, effective June 25, 2020, employers are prohibited from asking salary history, and must provide a position’s pay scale upon a conditional offer of employment, or upon applicant request.

Washington:  Amendment to the Equal Pay and Opportunities Act
Effective July 28, 2019, a salary history ban applies to all Washington employers, regardless of size. An additional requirement to disclose salary range information to applicants requesting, or after a conditional job offer is made, applies to Washington employers with 15 or more employees.

We can pretty safely assume that as today’s employers and workers move through—and past—the COVID pandemic, legislators will be thinking not only about economic recovery, but also about further ensuring workplace equity now and into the future. We very likely have not seen the last of new law regarding salary transparency.