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Compliance Clips for June 2022

CONSUMER REPORTING AND EMPLOYER COMPLIANCE INFORMATION

Washington
In employer compliance news: Washington has amended its Equal Pay and Opportunities Act (EPOA) to require employers to include wage and benefit information in their job postings, effective January 1, 2023. Washington is the third jurisdiction to do so, in an effort to address what is seen as a significant pay gap. This new regulation replaces a prior requirement that employers provide employee pay information to applicants “upon request” after receiving an employment offer, and applies to employers with 15 or more employees.
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California
Compliance counts! An important reminder that FCRA compliance includes obtaining authorization from a candidate prior to a background check, and that these appropriate disclosures are presented as standalone documents. In a case detailed here, a plaintiff filed suit in the Superior Court of San Diego County alleging the defendant willfully violated the FCRA by providing job applicants with a disclosure form that included extraneous language unrelated to the topic of consumer reports (a background check in this case). The California Court of Appeals reversed a previous decision, noting that the defendant’s prolonged use of the disclosure form could suggest recklessness because the defendant lacked ongoing monitoring and legal guidance to guarantee FCRA compliance of documents.
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An Important Compliance Reminder
Although in this case, a Federal Appeals Court sided with the employer, it’s a good opportunity to remember that without documented background screening processes, claims of FCRA violations can become costly class action lawsuits. According to a recent decision from a federal appeals court, the applicant didn’t claim criminal information found on the background report was wrong. Instead, the claim stated that time should have been allowed to explain the conviction before the offer was withdrawn. the 8th U.S. Circuit Court of Appeals ruled in favor of the employer. However, as noted, while the applicant did not receive a copy of the report prior to rescindment of an employment offer, the applicant did not claim the report was inaccurate.
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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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I-9 AND E-VERIFY

Document Review Extension

U.S. Immigration and Customs Enforcement (ICE) announced a thirteenth extension, this time for a six-month period—until October 31, 2022—of I-9 compliance flexibility rules relating to Form I-9. This flexibility allows ongoing exemptions for “in-person” work authorization document review for companies still offering remote work schedules. That said, there is also discussion that the government is still considering a permanent virtual option for document review. We will continue to watch this issue and report further information.
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REMINDER: Expired List B Document Requirements
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
As we all know, there are a growing number of states with varying degrees of legalized marijuana. For some, medical marijuana is legal, but not recreational. For others, marijuana is fully legalized. And in some states, including New Jersey and New York, even testing for marijuana is regulated by legislation. For employers operating in multiple states, marijuana testing obligations will be different from location to location. One option with growing popularity among employers is to have a comprehensive drug testing policy stating your company does not condone marijuana use, and the company will comply with applicable laws in states/jurisdictions where it does business. That of course means substance abuse policy will differ depending on where your employees work. It’s certainly one approach to drug testing among many, but always remember A-Check is here to help answer any questions you may have.
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New Hampshire
A last attempt to pass marijuana legalization legislation this year in New Hampshire has failed, and it looks like no further marijuana proposals are expected this year for NH. Senate Bill 299 would have allowed adults to possess and grow small amounts of cannabis, and would have also removed the current $100 penalty for possessing less than three-quarters of an ounce of marijuana.
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To date, thirty-seven states and Washington, D.C. have laws legalizing medical marijuana, with 19 states and D.C. legalizing marijuana for recreational purposes, according to the National Conference of State Legislatures.

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

Tampa, Florida

Tampa, Florida is currently developing a plan to get employers and city contractors to stop asking job applicants about their criminal history prior to a conditional offer. This Ban the Box effort would also help to promote businesses hiring people with criminal records. Tampa sees this effort—to be potentially approved at a later meeting—as a move toward increased overall employment, and the reduction of repeat criminal offenders.
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DATA PRIVACY

Connecticut
Connecticut is poised to become the fifth state to enact comprehensive privacy legislation, with most of the new law’s provisions taking effect July 1, 2023. Connecticut legislation is modeled after the Colorado Privacy Act (CPA) and the Virginia Consumer Data Protection Act (VCDPA), using many of the same definitions and provisions to align with the laws in these jurisdictions. This includes: the right to access personal data, the right to correct personal data, the right to delete personal data provided by or obtained about the consumer, the right to port the consumer’s data to another entity and, the right to opt out of the sale of personal data, targeted advertising, and profiling.
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Worldwide Data Privacy
Data privacy laws in place—and others coming soon—will likely impact nearly every business in some way. Especially in a globalized economy where more and more companies have a worldwide footprint of business activity. Now, more than every before, it’s important for companies to grow data privacy teams, and have informed approaches to doing business while also complying with global privacy requirements. Financial penalties for non-compliance can be very steep and vary significantly depending on legislation. Here’s a good look at current regulations, as well as penalties for non-compliance.
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Questions? We’re here to help!

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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!

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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!

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Compliance Clips for February 2022

GENERAL COMPLIANCE INFORMATION

Highlights in Background Screening Legislation
Let’s all work together to help minimize the risk of non-compliance within your employment background screening program. Time to review your screening practices for 2022, as last year, many states enacted ban-the-box and other laws impacting background screening. Here are the highlights:

Illinois amended the Illinois Human Rights Act, making it more difficult to reject applicants or terminate employees based on conviction history. Adverse employment action, based on criminal conviction history, may only take place if it directly relates to a job or presents unreasonable risk to workplace safety.

Louisiana passed a “Fair Chance” law prohibiting employers with 20+ employees within the state from considering an arrest or charge not resulting in a conviction if the record was presented during an employment background check.

New York City amended its Fair Chance Act. Guidance within this new legislation states that employers may not consider charges without convictions, must follow a specific process when considering a pending record, and may only reject an applicant if the applicant intentionally failed to disclose or misrepresented criminal history.

Philadelphia expanded its Ban the Box legislation to now cover criminal history inquiries for independent contractors, gig workers, and current employees.
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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.

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.
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Anti-Discrimination Legislation
This review of new anti-discrimination laws enacted in 2021 and yet to enact in 2022 illustrate that lawmakers continue to expand on employee protection legislation. Many new laws focus on natural hair and race-based hairstyle discrimination. Be sure you’re familiar with laws impacting your organization.
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BAN THE BOX

Nationwide Federal Contractors
Under the Fair Chance Act, federal contractors—in certain cases—are now prohibited from inquiring about a job applicant’s criminal history during the initial employment application process. In general, the FCA covers both civilian agency and defense contractors, and prohibits criminal history inquiries until after the contractor has extended a conditional employment offer.
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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.
READ MORE

DATA PRIVACY

Questions? We’re here to help!

Featured

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!