| ENACTED LEGISLATION |
| NEW MEXICO: "Ban the Box" protections enacted for private employment; |
| Summary: Effective June 14, 2019, Senate Bill 96 will prohibit private employers from making an inquiry regarding a job applicant's history of an arrest or conviction on an employment application. However, the employer may consider a job applicant's conviction history after reviewing their application and upon a discussion of employment with the job applicant. |
| Impact(s): All New Mexico employers |
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| NEW MEXICO: New law enacted allowing individuals to expunge criminal records |
| Summary: Effective Jan. 1, 2020, House Bill 370, the "Criminal Record Expungement Act, will allow a person who is wrongfully identified in arrest records or public records as a result of identity theft to petition the district court for an order to expunge such records. It also allows for a person charged without conviction, within one year from final disposition of the case, or charged with a conviction, following completion of sentence and payment of fines, for a violation of a municipal ordinance, misdemeanor or felony, to petition the district court for an order to expunge arrest and public records related to the case.
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| Impact(s): All New Mexico employers |
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| NORTH CAROLINA: Executive Order signed to ban salary history question |
| Summary: Effective immediately, Gov. Roy Cooper signed Executive Order No. 93 on April 2, 2019, prohibiting state agencies from requesting salary history from job applicants. It also directs the state to remove employment salary history fields from state employment applications as soon as possible. |
| Impact(s): North Carolina state agencies |
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| NORTH DAKOTA: Government employers banned from asking about job applicant's criminal history |
| Summary: House Bill 1282 will effectively prevent certain public entities from asking about an applicant's criminal history until the applicant is selected for an interview. It will apply to state, county and city governments, as well as park districts, but will not apply to school districts and the state Department of Corrections and Rehabilitation. The Bill becomes effective Aug. 1, 2019. |
| Impact(s): North Dakota government agencies |
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| PROPOSED LEGISLATION |
| U.S. CONGRESS: House discusses changes to the Fair Credit Reporting Act |
| Summary: On Feb. 26, 2019, the House Financial Services Committee held a hearing to discuss changes to the Fair Credit Reporting Act. The bills discussed were the Comprehensive Consumer Credit Reporting Reform Act and the Protecting Innocent Consumers Affected by a Shutdown Act. The Protecting Innocent Consumers Affected by a Shutdown Act would establish a nationwide database of consumers affected by a shutdown of the federal government and would prevent credit reporting agencies from including any adverse financial information that occurs during the shutdown. The Comprehensive Consumer Credit Reporting Reform Act would place "the burden of removing mistakes from credit reports onto the credit bureaus and furnishers." Other changes would include very limited use of credit checks for employment purposes; establishing new requirements on consumer reporting agencies; and, creating a right to appeal the results of investigations into disputed information. |
| Impact(s): All employers |
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| COURT OPINIONS |
| U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT: Appellate court agrees that applicant's status as registered medical marijuana cardholder does not prove actual marijuana use |
Summary: The Ninth Circuit Court of Appeals refused to dismiss a medical marijuana-using applicant's disability discrimination claim because he did not state that he used marijuana at the time of his interview – even though he provided a copy of his medical marijuana card – and was not subjected to a drug test. After receiving a conditional offer of employment as a forklift operator, plaintiff was advised that he was required to pass a drug test. He disclosed to the HR Director that he was registered under Hawaii's Medical Cannabis Program and presented a copy of his medical marijuana card. The HR Director stated that if he tested positive for the drug test, the employment offer would be withdrawn. The plaintiff allegedly stated that he understood that the job offer would be "taken off the table" if he failed the drug test. Subsequently, the job offer was withdrawn even though the drug test was not conducted.
The plaintiff asserted claims of age discrimination and disability discrimination, and the employer moved to dismiss the complaint. The employer argued that the disability discrimination claim should be dismissed because of the plaintiff's use of marijuana. The Court denied the motion to dismiss on this basis, given that the plaintiff did not fail a drug test and did not admit to marijuana use, and thus there was no evidence that the plaintiff had actually used marijuana.
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| Impact(s): Drug screening compliance – for general legal review |
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| SUPERIOR COURT OF NEW JERSEY: Appeals court allows medical marijuana user to proceed with disability discrimination claims against employer |
Summary: A New Jersey appellate court has held that a disabled employee may sue his former employer under the New Jersey Law Against Discrimination ("NJLAD") for alleged discrimination based on the employee's use of medical marijuana for cancer. Although the New Jersey Compassionate Use of Marijuana Act ("NJCUMMA") does not prohibit employment discrimination based on medical marijuana use, the Court held that the NJCUMMA does not immunize "employers from obligations already imposed elsewhere [such as under the NJLAD]."
In this case, the plaintiff used medical marijuana for cancer. The plaintiff was involved in a car accident while on duty and was required to take a post-accident blood drug test before returning. At that point, the plaintiff's father disclosed the plaintiff's use of medical marijuana. The plaintiff was later informed that "corporate" was unable to "handle" his marijuana use and his employment "was being terminated because they found drugs in [his] system." After that, the employer informed the plaintiff in a letter that he was not terminated because of his drug use, but because he failed to disclose his use of a medication that might adversely affect his ability to perform his job duties in accordance with company policy.
The lower court granted the employer's motion to dismiss the disability discrimination claims, finding that the NJCUMMA "does not contain employment-related protections for licensed users of medical marijuana." However, the appeals court determined that plaintiff sufficiently pled the elements of a prima facie case for disability discrimination, reversed the lower court's decision to dismiss, and remanded the case for further proceedings.
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| Impact(s): Drug screening compliance – for general legal review |
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| U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK: Summary judgment granted in favor of City employer |
| Summary: A white employee brought a discrimination case against a New York City employer alleging he was discriminated against for lying about having criminal convictions when an African American co-worker was not. The plaintiff alleged that the employer treated him differently compared to an African-American coworker who also had a criminal conviction. The court, however, found that they were not similarly situated. The court granted summary judgment in favor of the defendant finding that that the African-American employee had only one conviction (compared to the plaintiff's eight) and he had brought his criminal history omission to the attention of the employer before his background investigation began, whereas the plaintiff continued to withhold details throughout the investigation.
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| Impact(s): All employers |
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