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Please note: This Legislative Alert has been updated to correctly attribute our reporting below on a criminal background check policy to Oklahoma State University (the previous version erroneously attributed the update to the University of Oklahoma).
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| ENACTED LEGISLATION |
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MASSACHUSETTS: Attorney General issues guidance on new salary history ban
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Summary: The Massachusetts attorney general has issued an overview and has answered some questions regarding the new Act to Establish Pay Equity which will update the Massachusetts Equal Pay Act ("MEPA") effective July 1, 2018. The updates include a new prohibition on seeking the salary history of a prospective employee, and the guidance included the following details regarding that new prohibition:
- Internal employees who apply for transfers or promotions are not covered by this provision as the employer already has the information and therefore need not "seek" it;
- Employers are explicitly allowed to ask prospective employees about salary requirements or expectations. The guidance does, however, caution employers that they should not ask questions that are intended to prompt prospective employees to disclose wage histories; and
- Employers may ask applicants about matters such as sales performance and whether targets were met at prior employers, as long as the inquiries do not seek information about earnings based on those sales.
The new law will also apply to employees who work outside of Massachusetts as long as Massachusetts can be defined as their "primary place of work," (i.e., the place where "most" of the work is performed). |
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Impact(s): Massachusetts employers |
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MICHIGAN: Michigan law prohibits local governments from implementing "Ban the Box" policies and salary history bans
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Summary: Michigan Gov. Rick Snyder signed a bill that forbids local governments from limiting the questions businesses can ask during job interviews, bucking the trend of states and municipalities to implement "Ban the Box" policies or laws prohibiting employers from asking applicants about their salary histories. Specifically, S.B. 353 provides that a local governmental body "shall not adopt, enforce, or administer an ordinance, local policy, or local resolution regulating information an employer or potential employer must request, require, or exclude on an application for employment or during the interview process from an employee or a potential employee."
Notably, the new law does not bar any ordinance, local policy, or local resolution that would require a criminal background check for an employee or potential employee in connection with the receipt of a license or permit from a local governmental body. |
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Impact(s): Michigan employers |
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| WASHINGTON: Gov. Inslee signs "Ban the Box" policy into law |
Summary: Effective June 6, 2018, Washington will be the next state to implement "Ban the Box" legislation restricting employers from inquiring about a job applicant's criminal background during the initial stages of the application process. Gov. Jay Inslee signed into law the Washington Fair Chance Act (WFCA), which prohibits inquiries regarding applicants' conviction histories until the employer has determined the applicant is "otherwise qualified" for the position.
Notably, the law will not apply to: (1) any employer hiring a person who will or may have unsupervised access to children under the age of 18 or a vulnerable adult or person, as defined by Washington law; (2) any employer, including a financial institution, who is expressly permitted or required under any federal or state law to inquire into, consider, or rely on information about an applicant's or employee's criminal record for employment purposes; or (3) any entity required to comply with the rules or regulations of a self-regulatory organization, as defined by the Securities Exchange Act.
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Impact(s): Washington employers |
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| PROPOSED LEGISLATION |
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CALIFORNIA: California's FEHC issues proposed regulations for new "Ban the Box" law
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Summary: The California Fair Employment and Housing Council (FEHC) is proposing two regulations to implement provisions of Assembly Bill 1008 and the Senate Bill 63. A.B. 1008, signed last year by Gov. Brown, enacted a new "Ban the Box" provision. This provision prohibits an employer from considering criminal history of a prospective employee until after a conditional offer of employment is made. Under AB 1008, an employer is required to notify an applicant in writing and provide at least "five business days" to respond to a revocation of a conditional offer of employment based on its review of applicant's criminal history. To avoid disputes over the "five business days'," language, the FEHC is proposing that the "five business days" be calculated from the date of receipt of the notice by the applicant. The proposal also adds the following language:
"If notice is transmitted through a format that does not provide a confirmation of receipt, such as a written notice mailed by an employer without tracking delivery enabled, the notice shall be deemed received five calendar days after the mailing is deposited for delivery for California addresses, ten calendar days after the mailing for addresses outside of California, and twenty calendar days after mailing for addresses outside of the United States."
AB 1008 also provides that an applicant may respond to a revocation of a conditional offer of employment by including evidence of rehabilitation and/or mitigating circumstances. The proposed regulation will attempt to specify this provision as follows:
"The types of evidence that may demonstrate rehabilitation or mitigating circumstances may include, but is not limited to: the length and consistency of employment history before and after the offense or conduct; the facts or circumstances surrounding the offense or conduct; and rehabilitation efforts such as education or training."
Although the employer has the right to make the final decision to deny employment, this provision requires that the employer consider all information submitted by applicant before making its final decision.
The FEHC will be discussing these proposed regulations at its meeting on April 4, 2018 in Los Angeles. Written comments may be submitted to the FEHC prior to 5 p.m. on April 4, 2018.
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Impact(s): California employers |
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| OTHER UPDATES |
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FAIR CREDIT REPORTING ACT: Prospective employees bring suit against hotel company claiming FCRA violations
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Summary: A hospitality company was hit with a proposed class action in Florida federal court, alleging that it violates the FCRA by failing to provide applicants with "standalone" disclosures and failing to provide applicants with a copy of their reports and an opportunity to dispute before taking adverse employment actions. The employer successfully moved the proposed class action from a state court to the Florida federal court system. |
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Impact(s): FCRA compliance – for general legal review |
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FAIR CREDIT REPORTING ACT: Plaintiff brings class action against an employer for alleged violations under FCRA
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Summary: Plaintiff brings this proposed class action against an employer, alleging that it failed to follow the FCRA's disclosure and authorization requirements. Plaintiff alleges that the employer's disclosure form included extraneous information, including equal employment language, information on a drug test requirement, and at-will employment language. Plaintiff further alleges that the employer failed to follow the FCRA's pre-adverse action requirements. Plaintiff alleges that he received a letter stating that the employer has or will be completing a review of his application in the next few days, but making no mention of a potential adverse action (but did include a copy of his report). The report noted that plaintiff's report had been adjudicated to a "fail," which plaintiff claims was a final decision not to hire him and thus a pre-adverse letter was required prior to this "fail" adjudication. Plaintiff further alleges that the failure of the first letter to alert him of a forthcoming adverse action did not satisfy the pre-adverse action requirement. |
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Impact(s): FCRA compliance – for general legal review |
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| EQUAL EMPLOYMENT OPPORTUNITY COMMISSION: President Donald Trump names Sharon Fast Gustafson General Counsel of the EEOC |
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Summary: President Donald Trump announced his appointment of Sharon Fast Gustafson to the office of General Counsel of the Equal Employment Opportunity Commission for a term of 4 years. Gustafson practiced before the EEOC and the federal courts in a variety of employment-related disputes. She has been in private practice since 1996 and has represented both employees and employers. The Metropolitan Washington Employment Lawyers Association named Gustafson its Lawyer of the Year in 2016 for her work at the EEOC and the U.S. Supreme Court. Gustafson was plaintiff's counsel in Young v. UPS. |
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Impact(s): For general legal review |
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| OKLAHOMA STATE UNIVERSITY: OSU recommends instituting criminal background checks* |
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Summary: The Faculty Council is set to recommend an update on its faculty background checks. If accepted, effective March 1, 2018, all new tenure-track and non-tenure track faculty and incoming graduate and professional students with assistantship responsibilities will be subject to a criminal background check. Background checks are currently part of the graduate college's "best practices", but if this recommendation is accepted, background checks will become "standard practice." |
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Impact(s): Oklahoma State University |
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*Editor's Note: This article was updated to correctly attribute the recommendation for instituting criminal background checks to Oklahoma State University, rather than the University of Oklahoma. We apologize for the error.
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