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Compliance Clip March 2020

CREDIT CHECKS

House Passes Bill Restricting Employer Credit Checks

The House of Representatives passed the Comprehensive CREDIT Act of 2020, which would change federal laws pertaining to consumer reporting agencies and credit checks in a number of ways. Significantly for employers, the Act includes an amendment to the Fair Credit Reporting Act (FCRA), which would restrict the use of credit information for most employment decisions. PLEASE NOTE: The Act now heads to the Senate where it is unlikely to pass in its current form . . . we’ll monitor and keep you updated.
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SUBSTANCE ABUSE TESTING

NEW YORK City Employers Must Say Bye-Bye to Pre-Employment Marijuana Testing
A common onboarding practice is about to become illegal in New York City. Effective May 10, 2020, most New York City employers will be prohibited from requiring job applicants to undergo testing for marijuana. The new law makes mandatory marijuana testing of prospective employees equivalent to an unlawful discriminatory practice, such as denying a job applicant employment because of his or her race, gender, or any other protected characteristic.
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Department of Transportation Cautions Employers About CBD Use by Regulated Workers
If a CBD product has a concentration of more than 0.3% of tetrahydrocannabinol (THC), an amount generally viewed to be sufficient to produce a psychoactive effect, then it is an unlawful Schedule I controlled substance under federal law. Problems arise when employees test positive for THC but then claim to be using a “THC-free” or “pure CBD” product.
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AS A REMINDER: At A-Check, we’re happy to help implement a drug screening program that meets your evolving needs—or make adjustments to the program you’re already running with us. Just give us a call at 877-345-2021 and ask to speak with someone on your Client Relations team.

BAN THE BOX LAW

NEW ENGLAND Ban the Box Trend: Navigating Criminal History Checks in the Hiring Process
Many states and localities have been adopting Ban the Box, prohibiting employers (including private employers) from asking applicants to disclose information concerning their criminal histories prior to an initial interview or a conditional offer of employment. Currently, all New England states except Maine and New Hampshire have a Ban the Box law that is applicable to private employers.  Bills that would have applied Ban the Box to private employers in both Maine and New Hampshire died in last year’s legislative sessions, but there is a good chance that similar legislation will resurface.
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DATA PRIVACY

WISCONSIN Proposes “Groundbreaking” Data Privacy Law Modeled After GDPR
A trio of consumer data privacy bills modeled after Europe’s General Data Protection Regulation (GDPR) has been introduced in the Wisconsin State Assembly. The three bills, collectively dubbed the Wisconsin Data Privacy Act (WDPA), were sponsored by Republican State Representative Shannon Zimmerman, who is seeking to make Wisconsin “the most consumer-friendly state in our nation on data privacy.” If enacted, the WDPA would take effect July 31, 2022.
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State Consumer Privacy Law Round-Up
As the likelihood of the federal government passing a timely, workable national consumer privacy law before the November election decreases, states from coast to coast have been busy. According to the National Conference of State Legislatures, over 150 new consumer privacy bills were introduced in 25 states and Puerto Rico in 2019. This link is a comprehensive summary of privacy bills introduced thus far in 2020:
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SALARY HISTORY

Ninth Circuit Reaffirms Only Job-Related Factors Will Excuse Pay Disparity Under Federal EPA, Prior Salary Not Job-Related
On February 27, 2020, the Ninth Circuit issued a long-anticipated decision.  The appellate court affirmed its prior holding and concluded that: (1) only job-related factors may excuse wage disparities between comparable employees within the context of a federal Equal Pay Act (EPA) claim, and (2) prior salary, alone or in consideration with other factors, is not job-related, and therefore cannot serve as an affirmative defense to an EPA claim.
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Questions? We’re here to help!

Featured

Compliant Background Screening and your Employment Program

If it’s worth saying, it’s worth repeating . . .
and then backing that up with a link to a great article we found!

Performing compliant, accurate background screening helps minimize risk to your company and your employees by confirming candidates are who they say they are, while at the same time maximizing your ability to hire and retain strong, capable employees for the long run.

But keep in mind that above all, when you perform background screening through a company that is in the business of gathering and reporting background records and verification information (like A-Check Global), you as the employer must ALSO do your part to comply with the Fair Credit Reporting Act (FCRA).

Why such focus on the compliance of background screening?

We can’t make it any clearer than to say failure to comply with FCRA requirements will surely expose you to the risk of expensive and ongoing litigation. It’s important to regularly review your program for:

  • Adherence to FCRA requirements for Disclosure and Authorization forms
  • Compliance with permissible purpose and to what extent information can be used
  • Non-discriminatory consideration for all candidates
  • And confirmation that the Consumer Reporting Agency you use (like A-Check Global) also maintains compliance with applicable laws and regulations.

Got a minute? Here’s a great read:

We found an excellent article detailing compliance requirements and the utilization of background checks by employers.

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We are here to help!
If you have questions about your current screening program, please don’t hesitate to reach out to us. Contact A-Check Global here to get started.

Featured

Keeping a Close Eye on Compliance:

FCRA Disclosure and Authorization Forms

No doubt, you already know the Fair Credit Reporting Act (FCRA) has strict regulations in place to govern your pre-employment background screening process—and that failure to meet these regulations when screening your candidates can quickly get you into some pretty expensive legal trouble. It’s no secret that class action attorneys, year after year, continue to pursue employers and Consumer Reporting Agencies that are not in strict compliance with FCRA requirements.

Before we get too much further, let’s take a quick look at why these regulations are in place to begin with.

The FCRA was enacted to help ensure consumer protection

Short and simple. It’s about the privacy of consumer information—knowing what information is collected, and how that information can be used by lenders, credit issuers, and yes, even employers. During background screening, this protection also extends to information like criminal/arrest records.

In short, if you’re a U.S.-based business, of any size, public or private, your pre-employment background screening program is subject to FCRA regulation compliance.

Two important requirements: FCRA Disclosure and Authorization

Employers must begin all candidate background screening with two critical steps:

  • Disclosure: You must properly inform candidates that you will be performing a background screen
  • Authorization: And, you much obtain the candidate’s permission for this background screen

Let’s take a closer look at what is required for both.

Disclosure: Clearly notifying candidates that you intend to perform background screening as part of a wholly informed hiring decision. This disclosure must be clear (direct language, easy to understand), conspicuous (prominent, not deeply embedded in other forms or fine print), and presented as a stand-alone document.

Authorization: Also as a self-contained document, a clear candidate acknowledgement that background screening will be conducted as a pre-employment requirement. This can be presented jointly with the Disclosure, but must be on two separate and printable pages. As part of the authorization, the client will also acknowledge that the company is an equal-opportunity employer and follows all fair hiring practices.

That said, what can go wrong? Well . . . without close attention, a lot!

At most risk, improperly worded presented background check disclosure and authorization forms that do not follow FCRA requirements to the letter are magnets for class action litigation. Like we mentioned above, the FCRA requires clear, conspicuous disclosure as well as candidate written authorization prior to performing a background screen employment. Furthermore—and this is detail attorneys are embracing—FCRA requires the disclosure and authorization forms exist as stand-alone documents. (FCRA section 604(b)(2)).

It is the End User’s responsibility to manage the forms they provide to candidates. Disclosure and authorization forms can typically be signed physically or electronically. However, your company or organization should always consult with your legal team to confirm you are utilizing the appropriate forms, as FCRA regulations evolves over time, as does state-by-state legislation.

A-Check Global has consistently communicated the importance of disclosure and authorization form compliance to our clients. While U.S. employers are ultimately responsible for ensuring their hiring practices comply with federal and state requirements, we’re here to help.

Ask us about our FCRA Form Tool Kit

We offer a convenient Authorization for Background Investigation Form Kit which helps make it easier to comply with FCRA and applicable state-by-state requirements. Our document includes all the components necessary to customize your Forms.

For more information and access to this Tool Kit, please contact us at clientsupport@acheckglobal.com or 1-877-345-2021.

Featured

Compliance Clip February 2020

EMPLOYER COMPLIANCE

UPDATE: New Version of Form I-9 approved

On January 31, 2020, USCIS announced an update to the (paper version) of Employment Eligibility Verification Form I-9. This update was approved on October 21, 2019. Employers using the paper version should begin using the updated paper Form I-9 as of January 31, 2020, but have until April 30, 2020 to discontinue use of the previous paper version (Rev. 07/17/2017 N). The electronic version will be updated before this mandatory cutoff date of April 30, 2020, and we will keep you informed as we learn more.

USCIS made the following changes:
Form

Revised the Country of Issuance field in Section 1 and the Issuing Authority field (when completing the fillable form online).

Instructions
Clarified who can act as an authorized representative on behalf of an employer
Updated USCIS website addresses
Provided acceptable document clarifications
Updated the process for requesting the paper Form I-9
Updated the DHS Privacy Notice
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SUBSTANCE ABUSE TESTING

PA MEDICAL MARIJUANA ACT: Court Finds Implied Wrongful Discharge Cause of Action
In a recent decision, a Pennsylvania county court ruled that the state’s Medical Marijuana Act creates a private cause of action for employees who have been terminated for their off-duty use of prescribed medical marijuana. The ruling is the first of its kind in Pennsylvania, but follows a line of cases from other jurisdictions that have similarly found that lawful medical marijuana users can sue their employers under similar circumstances. Pennsylvania employers should take note of this important decision, as we continue to monitor and report on this developing issue.
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AS A REMINDER: At A-Check, we’re happy to help implement a drug screening program that meets your evolving needs—or make adjustments to the program you’re already running with us. Just give us a call at 877-345-2021 and ask to speak with someone on your Client Relations team.

BAN THE BOX LAW

MARYLAND Bans the Box
Effective January 1, 2020, Maryland employers may not, at any time before the first in-person interview, require an applicant to disclose whether he or she has a “criminal record” or has been the subject of criminal accusations. An employer may require the applicant to disclose that information during the first in-person interview. An employer is prohibited from retaliating or discriminating against an applicant or employee who complains of a violation of the law.
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LOUIS Enacts Ban the Box Ordinance Applicable to Private Employers
The ordinance prohibits employers located within the City of St. Louis with 10 or more employees from asking about criminal history on applications and hiring forms. Employers are also barred from posting job advertisements that exclude applicants with a criminal history and from using exclusionary language in applications or other hiring forms. Employers are further prohibited from asking about or investigating an applicant’s criminal background until after the applicant has been interviewed and deemed qualified for the position. Employers may not attempt to circumvent these restrictions by seeking publicly available information about an individual’s criminal history.
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DATA PRIVACY

BREXIT UPDATE: What Does This Mean for Data Privacy?
In a statement on January 29, the Information Commissioner’s Office said the following: “The UK will leave the European Union on January 31 and enter a Brexit transition period. During this period, which runs until the end of December 2020, it will be business as usual for data protection. The GDPR will continue to apply.”
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BRAZIL’S Data Protection Law
With less than a year remaining before Brazil’s General Data Protection Law (referred to as the LGPD) takes effect, HR professionals should start preparing.

The LGPD—which regulates how companies, including employers, must process personal data such as employees’ identification numbers—takes effect August 15, 2020.
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SALARY HISTORY

NEW YORK Joins Other States in Banning Salary History Questions
As of January 6, 2020, New York employers are prohibited from inquiring about an applicant’s prior salary. The law applies to all public and private employers within New York State and covers applicants and employees who have taken an affirmative step to seek full-time, part-time, or temporary/seasonal employment with an employer. The law does not apply to independent contractors, freelance workers, or other contract workers unless they are to work through an employment agency.
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Questions? We’re here to help!

Featured

Compliance Clip December 2019

EMPLOYER COMPLIANCE

SSA No-Match Letters and Employer Obligations

The Social Security Administration (SSA) has drastically increased its issuance of Employer Correction Request (EDCOR) Notices, or “no-match” letters. No-match letters are sent when the SSA discovers a mismatch between information provided by employers for wage reporting purposes and SSA’s records. These no-match letters advise employers that corrections are needed in order for SSA to properly post employees’ earnings to the correct Social Security record.
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 SUBSTANCE ABUSE TESTING

House Judiciary Committee Moves to Federally Legalize Cannabis
On November 20, 2019, the House Judiciary Committee approved a bill that would decriminalize cannabis on a nationwide scale. The Marijuana Opportunity, Reinvestment and Expungement Act of 2019 – or MORE Act – passed with what some are calling a landslide vote of 24-10. This vote marks the first time in history a congressional committee has affirmatively approved to end federal cannabis prohibition.
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Pennsylvania: Medical Marijuana Lawsuit May Someday Provide Guidance to Employers
Given that state-sanctioned use of medical marijuana is relatively new, there are few cases interpreting Pennsylvania’s medical marijuana law with regard to employment. This is why a recently filed Pennsylvania lawsuit in October 2019, could have a far-reaching impact on employers.
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Illinois: Amendments to Recreational Cannabis Law Would Help Reduce Employer Liability
The Illinois Cannabis Regulation and Tax Act (410 ILCS 705) (the “Legalization Act”) will legalize recreational cannabis for Illinois adults starting January 1, 2020. With the deadline approaching, Illinois business community representatives raised numerous concerns with lawmakers. The Illinois Chamber of Commerce proposed revising the Act to clarify permissible drug testing and to limit possible causes of action against employers. Both Houses have passed SB 1557, a bill which amends and clarifies many portions of the cannabis-related laws.
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Michigan: Recreational Marijuana Use Now Legal
Michigan, where voters backed legalization in 2018, allowed stores to start selling weed to recreational users on Sunday. Michigan officials issued 18 licenses, including to growers and processors, for the first day of sales, and let stores shift some of their medical marijuana supply to recreational—at least until more recreational businesses are up and running in January.
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AS A REMINDER: At A-Check, we’re happy to help implement a drug screening program that meets your evolving needs—or make adjustments to the program you’re already running with us. Just give us a call at 877-345-2021 and ask to speak with someone on your Client Relations team.

SALARY HISTORY BAN

Year-End Reminder: New Jersey’s Salary History Ban Takes Effect January 1, 2020
In just a few short weeks, New Jersey employers will no longer be allowed to ask prospective employees about their salary history during the application or interview process or rely upon salary history in setting compensation.
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BAN THE BOX LAW

Ban the Box Laws Finding Inroads in Red States, Too
A pending vote in St. Louis to ban questions about criminal records at the start of the hiring process signals a larger shift on criminal justice reforms in red states.

St. Louis is at least the third city in a conservative state to consider such a measure this year, following new laws in Columbia, S.C., and Waterloo, Iowa, that have removed the question of criminal history from job applications. At a time when state and local legislative trends seem to more closely adhere to a political ideology—such as with paid leave or equal pay laws—Ban the Box laws bridge the political gap. READ MORE

DATA PRIVACY

New State Bills Inspired by the California Consumer Privacy Act May Re-appear Next Year
The California Consumer Privacy Act (CCPA) inspired legislators in several other states to attempt to pass similar legislation aimed at protecting the privacy rights of consumers. As the legislative calendars for most of those states have wound to a close before the recent election, this Alert reviews those bills as a preview to what we should expect in the next legislative session, particularly as several states will be returning a more progressive assembly.
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 Questions? We’re here to help!