ENACTED LEGISLATION
NEW YORK CITY: New York City's expanded "Ban the Box" regulations go into effect 
Summary: New York City's Fair Chance Act (FCA) has been in effect since 2015 but the New York City Commission on Human Rights recently promulgated a set of rules relating to employers' duties under the law. These regulations expand and clarify some of the requirements of the Act which makes it illegal for most employers in New York City (including out-of-state employers who publish postings for job openings in the city) to ask about job applicants' criminal records prior to making a job offer. The final regulations went into effect on Aug. 5, 2017.
Impact(s): New York City employers
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PROPOSED LEGISLATION
NEVADA: New law proposed to require background checks for volunteers at educational institutions
Summary: A new Nevada law could soon require parent volunteers to pay to undergo a background check if they want to volunteer at their children's schools. S.B. 287 makes it a requirement for any volunteer who "is likely to have unsupervised or regular contact with pupils" to undergo a background check. The school may cover the fee, but if unable to do so, the volunteer must pay for it. The Clark County School District is planning on charging volunteers a $60 fee to cover the cost of their own background check.
Impact(s): Nevada schools
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NEW YORK CITY: The New York City Commission on Human Rights is proposing an amendment to expand its rules applicable to the SCDEA
Summary: The New York City Commission on Human Rights is proposing rules that will add a new section to the Commission's regulations to: specify chargeable violations under the Stop Credit Discrimination in Employment Act (SCDEA); clarify that employers are prohibited from requesting or requiring waivers authorizing credit checks; clarify that exemptions to coverage under the SCDEA are to be construed narrowly; define positions involving a "high degree of public trust" and provide details regarding certain exemptions under the SCDEA; establish recordkeeping requirements for employers; set penalties for administrative actions under the SCDEA; and provide notice that the Early Resolution process will be used for certain per se violations of the SCDEA.
Impact(s): New York City employers
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BROWN COUNTY, WISCONSIN: Brown County Board to decide whether criminal question will permanently be removed from county job applications
Summary: An ordinance to permanently prevent Brown County job applicants from being asked if they've been convicted of a crime goes before the county board soon.
Impact(s): Brown County public employers
 
COURT OPINIONS
U.S. COURT OF APPEALS FOR THE SEVENTH CIRCUIT: Failure to show concrete injury doomed applicant's FCRA claim in both District Court and the Court of Appeals
Summary: Affirming the dismissal of a job applicant's class action suit under the Fair Credit Reporting Act (FCRA), in which he alleged violations of the FCRA's "stand-alone disclosure" requirement, the Seventh Circuit found that the plaintiff failed to show he suffered a concrete injury and thus lacked Article III standing because he did not allege that the companies failed to provide him with a disclosure that informed him that a consumer report may be obtained for employment purposes; that any of the additional information caused him to not understand the consent he was given; that he would not have provided consent but for the extraneous information on the form; that additional information caused him to be confused; or that he was unaware. The plaintiff alleged that the disclosure included extraneous information such as a liability release. With respect to an alleged privacy injury, the court concluded that because he admitted he signed the disclosure and authorization form, he could not maintain that he suffered a concrete privacy injury.
Impact(s): FCRA compliance – for general legal review
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U.S. DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT: Medical marijuana anti-discrimination law not preempted by federal law
Summary: A federal district court in Connecticut found an implied private right of action under Connecticut's Palliative Use of Marijuana Act (PUMA), and further held that federal law did not preempt the PUMA discrimination claim of a registered medical marijuana user whose job offer was rescinded after she tested positive. In finding no preemption, the court explained the federal Controlled Substances Act (CSA) does not regulate the employment relationship and that the ADA does not regulate non-workplace activity. The plaintiff had explained to the employer that she only took synthetic cannabis at bedtime and was not under the influence at work.
Impact(s): Connecticut employers
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OTHER UPDATES
U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK: Man alleges he was denied employment because of misdemeanor in background check, files class action
Summary: A rejected applicant filed a proposed class action against a New York employer, alleging that it discriminated against him by rejecting his employment when it found out the applicant had a past criminal conviction and failed to perform the requisite "individualized assessment" as required by the New York State Human Rights Law and NYC Human Rights law. Plaintiff also contends that the employer failed to follow the FCRA's pre-adverse action process. Finally, Plaintiff contends that the employer failed to provide him with a copy of Article 23-A when the consumer report contained criminal record information, as required by section 380-g(d) of the NY FCRA.
Impact(s): New York employers
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FAIR CREDIT REPORTING ACT: Class action suit filed against retail chain for alleged violation of FCRA "stand-alone" disclosure requirement
Summary: A class of job applicants hit a home improvement retail chain with a lawsuit in California federal court, alleging that it violated the FCRA by including liability waivers in background check disclosure forms. Under the FCRA, valid background and credit check disclosures cannot contain extraneous information and must consist "solely of the disclosure."
Impact(s): FCRA compliance – for general legal review
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FAIR CREDIT REPORTING ACT: Class action lawsuit filed against employer for alleged FCRA and state law violations
Summary: A class-action suit has been filed against an employer, alleging that it violated the FCRA's "stand-alone" disclosure requirement by embedding the disclosure with extraneous information (including a liability release) and failing to provide consumers with an FCRA summary of rights along with the investigative consumer report disclosure. The case also brings actions for failure to provide a "stand-alone" disclosure under California's ICRAA, and failure to identify the specific basis for a credit report under California's CCRAA, section 1785.20.5(a).
Impact(s): FCRA compliance – for general legal review
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U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA: Groups representing minority business owners file amicus brief in support of Chamber's challenge to Philadelphia's salary history ban
Summary: Two groups that represent businesses with African American and Latino owners have asked a federal judge to block Philadelphia's law prohibiting employers from asking job applicants about their salary history, saying it could be "ruinous" for predominately small minority-owned companies because many of their members already "struggle to survive," and the law would make it more difficult to compete with larger rivals. The current law prohibits employers from requiring disclosure of salary information as a condition of employment, and from retaliating against job applicants who refuse to volunteer it.
Impact(s): Philadelphia employers
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"BAN THE BOX": University of California is changing its hiring policy to "Ban the Box"
Summary: Under UC's new policy, which will begin as early as October, applicants will no longer be asked to check a box on the initial employment application indicating whether they have been convicted of a crime. Instead, information about prior convictions will be requested during the background and reference check stage, after applicants have advanced to the final stage in the hiring process based on their qualifications, talents, and skills.
Impact(s): University of California employers
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