Compliance Clips for October 2022

CONSUMER REPORTING AND EMPLOYER COMPLIANCE INFORMATION

New York City
Attention New York City employers: Effective January 1, 2023, local law will regulate the use of automated employment decision tools to identify and prohibit actions that discriminate against individuals in protected classes. What does this mean? Essentially, valuable online tools that are increasingly used during the employment process include algorithms and software geared toward finding top talent … but also has potential to impact scoring based on an individual’s gender, race, job title, etc. Generally speaking, New York City law will require that 1) IA tools are subject to a “bias audit” prior to using, and 2) employers will be required to meet certain notice requirements to candidates and employees.
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Update: California DOB Redaction within Court Records
We want to inform you that on September 29, Governor Gavin Newsom chose to veto SB 1262. For employers and the background screening industry, this is very disappointing news as his signature would have meant that previously redacted court case information would be restored beginning January 2023.

PBSA and its allies—including A-Check Global—will continue to work closely together to determine options at this stage. Of course, we will continue to provide our valued clients with updates in the near future. And as always, we thank you for your business.
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Iowa
Let’s work together to minimize your risk from a bad hire! In recent news, an Iowa hospital has been cited by the state for hiring a nurse—without a comprehensive background screen—who was then fired for suspected opioid theft. State inspectors reviewed the hiring process used last fall to employ the nurse and found that the hospital had failed to conduct a complete background check on the individual, including criminal conviction and the state’s Sex Offender Registry. Remember, we’re here to help answer your background screening and compliance question. We’d love to hear from you.
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California
Effective January 1, 2023, new legislation will require California companies with 15 or more employees to post salaries for job listings. It is reported that this new law will help reduce the wage gap and systemic inequities by requiring the disclosure of salary ranges for all job postings. This new law will impose penalties on employers failing to report pay scales to the state.
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I-9 COMPLIANCE

Document Review Flexibility
Due to the continued momentum of adopting hybrid workforces as well as evolving technology connecting organizations to their remote workers, the Department of Homeland Security (DHS) recently proposed a rule allowing more permanent, alternative procedures when reviewing Employment Eligibility Verification documents required by Form I-9. These revised procedures could be implemented as part of a short-term pilot program or further implemented upon determination that these procedures remain secure and effective as a measure in response to ongoing health and safety efforts regarding COVID. The DHS is accepting comments on this proposed rule before October 17, 2022.
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When Presented with a Restricted Social Security Card
When it comes to Section 2 of Form I-9, a Restricted Social Security card is not an acceptable List C document. This quick video offers helpful guidance on what to do in this situation.
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SUBSTANCE ABUSE TESTING

Nevada
A recent Nevada Supreme Court ruling upheld a decision that state legislation protecting off-duty marijuana use did not include the phrase “under state law,” and therefore falls under the jurisdiction of federal law where use is still illegal. This ruling upheld the dismissal of a lawsuit by an employee who was terminated after testing positive for marijuana on a post-accident drug test. The employee’s claim that his use of marijuana outside of work hours was “lawful use” under state law was rejected, and the court explained that if the legislature intended to protect off-duty use of marijuana, it could have included the phrase “under state law” in the statute, which it doesn’t. Employers, please keep in mind that Nevada’s recreational marijuana law permits employers to adopt and enforce workplace policies prohibiting or restricting the use of marijuana.
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California
California Assembly Bill (AB) 2188 (which will take effect on January 1, 2024) makes discrimination against off the job cannabis use unlawful, but does not preempt drug testing for preemployment. The bill makes it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment based upon: (1) a person’s use of cannabis off the job and away from the workplace, except for preemployment drug screenings, or (2) an employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites upon testing. Employers: please note that the bill does not permit an employee to possess, be impaired, or use cannabis on the job, nor does it affect the rights or obligations of an employer to maintain a drug- and alcohol-free workplace.
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New Jersey
The New Jersey Cannabis Regulatory Commission has issued “workplace impairment” guidance for employers who conduct marijuana testing—providing best procedures to help support drug testing practices. the Commission details that employers are required to “establish evidence-based protocols for documenting observed behavior and physical signs of impairment to develop reasonable suspicion, and then to utilize a drug test to verify whether or not an individual has used an impairing substance in recent history.”
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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

Harris County, Texas
Harris County represents the sixth Texas city or county to adopt a Ban the Box hiring policy. This Harris County policy applies only to public employers, not private employers. Ban the Box legislation has continued to gain momentum throughout the country. In fact, 37 states and more than 150 cities/counties have enacted Ban the Box legislation to help ensure that employers first consider an applicant’s skills and qualifications before viewing criminal history. This provides greater assurance that there is no negative bias to an employment application due to criminal convictions.
READ MORE

Questions? We’re here to help!

UPDATE: DOB Redaction within California Court Records

UPDATE: September 30, 2022
California SB 1262 Vetoed by the Governor


We want to inform you that on September 29, Governor Gavin Newsom chose to veto SB 1262. For employers and the background screening industry, this is very disappointing news as his signature would have meant that previously redacted court case information would be restored beginning January 2023.

PBSA and its allies—including A-Check Global—will continue to work closely together to determine options at this stage. Of course, we will continue to provide our valued clients with updates in the near future. And as always, we thank you for your business.

*********************

As you know, Consumer Reporting Agencies like A-Check Global rely on personal information within court indexes as an accuracy indicator during criminal background screening. We previously reported that more than 30% of California’s 58 counties were now redacting Date of Birth and other critical identifying information from criminal case records. We would like to now follow up with some great news.

The California State Assembly recently passed Senate Bill 1262 (SB 1262)—important legislation designed specifically to help stop delays in criminal background checks. This legislation will next be heading to the desk of California Governor Gavin Newsom for final approval and signature and will once again 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. For employers as well as the background screening industry, this is welcome news. Once the Governor signs the bill, previously redacted court case information is expected to be restored starting January 2023. We will certainly keep you updated as this progresses.

Your business means the world to us and we look forward to serving our valued California customers, as well as those nationwide and around the world, for years to come. We’re here to help if you have any questions.

Compliance Clips for September 2022

CONSUMER REPORTING AND EMPLOYER COMPLIANCE INFORMATION

Pay Transparency Legislation
21 states and a number of local jurisdictions already have pay transparency laws that require employers to disclose pay ranges to job applicants and employees. This growing legislation trend means employers should take a closer look at job applications and postings to ensure they are compliant—especially as overall hiring becomes more detailed due to ongoing remote workforce options and multi-state hiring. All in all, it’s always a great time to review hiring practices with your legal counsel.
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FCRA Litigation
Let’s work together to help minimize the risk of class action FCRA lawsuits. In this case example, an organization recently agreed to a $225k settlement for violation of FCRA by failing to provide pre-adverse action notices when using background screening reports to make decisions regarding applicants and employees. As a reminder, 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. The individual must then be allowed at least five business days to dispute the information in the background check. If after that period of time adverse action is taken upon final decision, the individual must be provided with a final notice of adverse action.
READ MORE

New York City
Attention New York City employers: Effective January 1, 2023, local law will regulate the use of automated employment decision tools to identify and prohibit actions that discriminate against individuals in protected classes. What does this mean? Essentially, valuable online tools that are increasingly used during the employment process include algorithms and software geared toward finding top talent … but also has potential to impact scoring based on an individual’s gender, race, job title, etc. Generally speaking, New York City law will require that 1) IA tools are subject to a “bias audit” prior to using, and 2) employers will be required to meet certain notice requirements to candidates and employees.
READ MORE

I-9

I-9 Deadline
It’s worth one more 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.
READ MORE

SUBSTANCE ABUSE TESTING

In the News: Mushrooms
With some discussion at the state level around decriminalization of mushroom microdosing, it’s worth mentioning that while mushrooms won’t show up on most routine drug tests, drug contamination (lacing) likely will. Mushrooms generally won’t show up on a 5-panel test. Same goes for 8-, 10-, and 12-panel tests, but certain specialized tests might detect them. What’s interesting is that there have been reports of people selling regular, store-bought mushrooms laced with other drugs, including PCP, which is detected by most panel tests. So in general, while most organizations probably aren’t testing for mushrooms, applicants may inadvertently return a non-negative test depending on what they’ve unknowingly ingested.
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Missouri
Missouri voters will have a chance to vote on a proposed initiative to legalize recreational marijuana during this November’s general election. If passed, legislation would amend the Missouri Constitution to legalize the possession and use of marijuana for those 21 and older, allowing adults to purchase up to three ounces of marijuana at a time. The measure also allows adults who obtain a registration card to cultivate marijuana at home.
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North Dakota
Also up for vote in 2022, North Dakota voters will have the chance to decide on marijuana legalization at the ballot this November. The initiative would allow adults 21 and older to purchase and possess up to one ounce of cannabis and grow up to three plants for personal use. Its provisions largely mirror the House-passed legalization bill that was ultimately rejected by the Senate.
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

Harris County, Texas
Harris County represents the sixth Texas city or county to adopt a Ban the Box hiring policy. This Harris County policy applies only to public employers, not private employers. Ban the Box legislation has continued to gain momentum throughout the country. In fact, 37 states and more than 150 cities/counties have enacted Ban the Box legislation to help ensure that employers first consider an applicant’s skills and qualifications before viewing criminal history. This provides greater assurance that there is no negative bias to an employment application due to criminal convictions.
READ MORE

Questions? We’re here to help!

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.
READ MORE

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.
READ MORE

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.
READ MORE

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.
READ MORE

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.
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.

Questions? We’re here to help!

JULY UPDATE: Redaction of Information within California Court Records

We’ve briefly mentioned this before, but it certainly bears repeating as everyone here at A-Check Global remains focused on providing accurate, compliant service, all with the shortest turnaround times possible. As you may know, we closely follow and participate in efforts to address California Rules of Court, rule 2.507—legislation which resulted in removal of date of birth and other personal information from publicly accessible criminal record cases.

Consumer Reporting Agencies like A-Check rely on personal information within court public indexes as an accuracy indicator during criminal background screening. It is reported that greater than 30% of California’s 58 counties now redact full or partial DOBs from criminal case records.

While we will never accept service disruptions as the “new normal,” for now, service impact is often an unfortunate combination of issues. For example, A-Check has seen problematic delays in many counties because they’ve not only removed DOBs from publicly accessible case information, but now also have limited processes in place to help court researchers in person. This causes name matches to get heavily delayed. In fact, we’ve also seen many researchers are being limited to a maximum number of daily case requests—likely an effort to give courts the best opportunity possible to keep up with demand.

There is certainly no magic solution to this redaction rule, and delays may continue within these counties for the foreseeable future. That said, please know that A-Check and our researchers, along with other CRAs, data providers, and industry organizations like the Professional Background Screening Association (PBSA) continue to actively lobby in favor of productive revisions to the rule for specific, permissible purpose (like background screening).

While this is only a snapshot of service impact as of this writing, A-Check is seeing process delays in the following California counties: Butte, Calaveras, Contra Costa, Glenn, Lake, Lassen, Los Angeles, Madera, Marin, Merced, Napa, Placer, Riverside, San Benito, San Mateo, Santa Clara, Shasta, Solano, Ventura, and Yuba.

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.