Legislative Alert

ENACTED LEGISLATION
ARKANSAS: Criminal background checks to be required for contractors
Summary: A new law was enacted on March 6, 2019, that will require criminal background checks on contractors of state agencies for the performance of services in designated positions or designated financial or information technology positions.
Impact(s): Arkansas state contractors
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ARKANSAS: Pre-employment drug testing to be required for public school employees
Summary: HB 1396 was passed that allows for a school district to implement a drug screening requirement for an applicant or current employee of a public school district.
Impact(s): Arkansas public schools
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OKLAHOMA: Unity Bill approved by Oklahoma Governor with an employer-friendly provision for safety-sensitive positions
Summary: An Act known as the "Unity Bill," HB 2612, was approved by Gov. Kevin Stitt on March 14, 2019. The previously enacted Oklahoma Medical Marijuana Act (OMMA) prohibits adverse action against medical marijuana license-holders regardless of whether they are applying for or work in a safety-sensitive job. However, this newly passed law will now allow employers to lawfully refuse to hire applicants for safety-sensitive jobs or to discipline or discharge employees who work in safety-sensitive jobs if they test positive for marijuana even if they have a valid license to use medical marijuana. The employer would have the discretion to decide what positions include safety-sensitive job duties that are exempt from the discrimination prohibitions of the Act.
Impact(s): Oklahoma employers
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SOUTH DAKOTA: Criminal background checks required for child welfare agency licensees
Summary: Effective, July 1, 2019, any adult working in a child care institution, including a group home, residential treatment center, intensive residential treatment center or shelter care facility will be subject to a criminal background check. In addition to applicants, the law applies to adults responsible for the administration or direct supervision of staff, any adult residing in the facility and any adult, including a volunteer who provides care and supervision to the children.
Impact(s): South Dakota child welfare agencies
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CINCINNATI, OHIO: Salary history question banned
Summary: The Cincinnati City Council passed an ordinance that prohibits employers from asking applicants about their salary history or current earnings, screening applicants based on wages or benefits, relying on salary history in hiring decisions or in determining compensation or to refuse to hire or retaliate against an applicant who refuses to provide salary history information. It excludes internal transfers or promotions, situations where employees are rehired within five years of leaving a company or in situations where federal law allows employers to consider salary. It also does not apply to any "voluntary and unprompted" disclosures related to an applicant's pay history.
Impact(s): Cincinnati employers
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PROPOSED LEGISLATION
U.S. CONGRESS: Fairness in Federal Drug Testing Act proposed
Summary: H.R. Bill 1687 was introduced seeking to protect federal job applicants and employees from being fired or not hired for using marijuana in line with the law of the state in which they reside. Federal employees and applicants can be fired or denied employment over marijuana use under federal law, regardless of state laws. It will not bar employers from drug testing employees if they suspect the employee is impaired at work and will not apply to positions requiring a top-secret security clearance.
Impact(s): Federal employers
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MARYLAND: "Ban the Box" legislation proposed
Summary: Legislation has been proposed to remove the criminal conviction question from job applications. An employer may ask about criminal history in the first interview but must wait to run a background check until a conditional offer of employment has been made. Certain jobs are excluded from the proposed Bill such as those that work with minors and law enforcement. If passed, the Bill will become effective on Jan. 1, 2020.
Impact(s): Maryland employers
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WISCONSIN: New budget proposed by Governor seeks to decriminalize marijuana and "Ban the Box"
Summary: Wisconsin Gov. Tony Evers has proposed a budget that includes a number of employment-related items. Notably, the budget seeks to decriminalize the possession of up to 25 grams of marijuana for recreational use, legalize marijuana for medical use for a wide range of health conditions and prohibit employers from considering or requesting an applicant’s criminal conviction record prior to the applicant’s selection for a job interview.
Impact(s): Wisconsin employers
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COURT OPINIONS

COURT OF APPEAL FOR ONTARIO: Employers may be candid when providing job references

Summary: The Court of Appeal for Ontario upheld a lower court's decision that found a former manager not liable for defamation after the manager's negative job reference led to the plaintiff's job offer revocation. The plaintiff tried to appeal to the Supreme Court of Canada but was denied. The Court of Appeal agreed with the lower court's decision that the manager was protected because his remarks were made in the context of an employment reference and that, "without this protection, references would either not be given, or would be given with such edited content as to render them unhelpful or misleading to a prospective employee."

Impact(s): Canadian employment law – for general legal review

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OTHER UPDATES

FAIR CREDIT REPORTING ACT: FCRA suit filed against large insulation company

Summary: A class-action suit was filed against a large insulation company that claims the company failed to provide a stand-alone disclosure as required by the FCRA. The plaintiff in the case alleges he was required to sign a document containing both a disclosure and authorization, as well as, other information related to employees in Minnesota, Oklahoma, California, New York, and Washington. The plaintiff alleges the form was confusing and did not grant the company valid authorization to obtain his consumer report.

Impact(s): FCRA compliance – for general legal review

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