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.
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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.
READ MORE

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!

Social Media Checks: Quickly Identify Harmful Online Behavior

Why consider checking a job applicant’s social media channels?

Simply put, it can be an additional but important step in the recruiting workflow to help further protect your company brand and the safety of your workforce from toxic behavior. The actions of “One bad apple” have the potential to negatively impact not just the well-being of your employees, but also your company’s reputation. We all have horror stories of off-color conversations and inappropriate harassment from problem employees that unchecked, would have likely risked the loss of top talent.

For better or worse, it stands to reason that an applicant’s digital presence can often provide a pretty complete picture of their character. Information found throughout social media (Facebook, Twitter, Instagram, etc.) can also help you determine whether they would be a right fit for your company. This doesn’t mean that a Social Media Check eliminates all risk. But in general, and as part of an overall recruiting effort, a Social Media Check is a valuable—and compliant—tool to help you minimize the risk of a toxic workplace.

How does a Social Media Check work?

The Configuration
Social Media Checks are designed to save hours of manually scouring an applicant’s online presence by instead utilizing a proven AI system to return accurate information in a fraction of the time. During your specific account setup, we’ll work closely with you to implement flags for specific risk behaviors that are important for your company to identify:

  • Drug and Alcohol Use
  • Explicit Sexual Content
  • Violence and Bullying
  • Racism and Hate Speech
  • Profanity

The Request
Submitting applicants for a Social Media Check is as easy as providing A-Check with name, date of birth, and additional information securely within A-Check Direct or via an A-Check integration with your existing ATS.

The Search
Within 24-72 hours, AI software builds a comprehensive online profile of your applicant, while experienced investigators verify the applicant identity and review 100% of all flagged content returned during the automated search.

The Report
Your report is available for review within your applicant’s screening file in A-Check Direct. You’ll have an opportunity to review a listing of the social sites searched and examples of negative content.

But are Social Media Checks Legal? Yes, they are.

Yes, compliant Social Media Checks are legal. That said, employers should rely on a reputable third-party partner—like A-Check—for assistance. Our Social Media Checks are performed with a focus on compliance. Simply put, we work to redact protected class information you should not see when making hiring decisions: race, gender, age, religion, disabilities, etc. You’ll have the behavior-related information you need when considering applicants, while also being removed from protected information that would be impossible to “un-see.”

Have questions about A-Check’s Social Media Check? We’d love to help and welcome your call or email.

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.
READ MORE

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
READ MORE

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.
READ MORE

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.
READ MORE

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.
READ MORE

Questions? We’re here to help!

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.
READ MORE

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.
READ MORE

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
READ MORE

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.
READ MORE

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.
READ MORE

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.”
READ MORE

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!

IMPORTANT UPDATE: Encouraging Progress in Michigan PII Access

A-Check Global remains focused on efforts being made to once again grant access to previously redacted identifier information within Michigan court records. The Professional Background Screening Association (PBSA)—a non-profit organization established to represent Consumer Reporting Agencies offering employment background screening services—continues to advocate for our industry, and has recently shared positive developments with its membership on this issue.

As a previously negotiated amendment to Michigan Court Rule 1.109, the Michigan State Court registration site went into effect on April 1, 2022. With this important action, court researches and additional, “authorized individuals” were provided opportunity to register with the Michigan State Court Administrative Office (SCAO) for continued access to PII within the Michigan court system.

PBSA has remained extremely active in monitoring this new access authority since April 1, and thankfully, the Michigan SCAO has been receptive to feedback about any workflow issues reported to PBSA. To date, there have been some ongoing instances of process delays. Some courts have restricted access, or limit the total number of verifications a researcher can perform per day.

On April 19, the Michigan SCAO released an FAQ document to provide further information on personal identifying information in court filings, including:

  • Authorized Individuals should be able to obtain court records by fax or email, and not be required to do so in person at Michigan courts.
  • Authorized individuals can use a redacted version of their own driver’s license as official identification.
  • Michigan courts cannot charge for a record check. Except where prohibited by law, they can however, charge a reproduction fee or copy fee.

It is noted by PBSA’s member advisory that local Michigan courts may continue to introduce process policies that could negatively impact turnaround time for court research. We at A-Check will continue to closely monitor this issue and keep our valued clients informed with any further progress.

We’re here to help answer any questions you may have, and we are honored to serve you.