| ENACTED LEGISLATION |
| CALIFORNIA: Legislation increases protections for employers answering reference requests |
Summary: Effective Jan. 1, 2019, AB 2770 will protect employers by providing an expanded privilege when giving an employment reference. The privilege protects employers from defamation claims when advising a prospective employer that the applicant was the subject of a credible sexual harassment claim. The claim must be “without malice” and based on credible evidence in order to be covered by the privilege.
Employers are currently protected from non-malicious references regarding the job performance or qualifications of an applicant for employment. Existing law also authorizes an employer to answer whether or not the employer would rehire an employee.
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| Impact(s): California employers |
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| CALIFORNIA: Gov. Brown signs legislation to provide guidance on salary history ban |
Summary: Assembly Bill 2282 defines certain terms contained in California’s new salary history legislation, AB 168, that went into effect on Jan. 1, 2018, and prohibits an employer from inquiring about a job applicant’s salary history information. The new law defines the term “applicant” or “applicant for employment” to mean an individual who is seeking employment with the employer and is not currently employed with that employer in any capacity or position. Other terms, including “reasonable request” and “pay scale” are also defined in AB 2282. “Pay scale” is defined to mean a salary or hourly wage range and “reasonable request” means a request made after an applicant has completed an initial interview with the employer.
Lastly, AB 2282 specifically provides that the law does not prohibit an employer from asking an applicant about his or her salary expectation for the position being applied for, a provision that was not addressed in AB 168. |
| Impact(s): California employers |
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| MAINE: Legislation passed to require child care workers to undergo a criminal background check and fingerprinting |
Summary: A new law was passed requiring employees of child care facilities to submit to a criminal background check and fingerprinting. Specifically, the law requires child care workers to undergo screening as set forth under 42 U.S.C. § 9858f(b), which includes: (1) a search of the State criminal and sex offender registry or repository in the State where the child care staff member resides, and each State where such staff member resided during the preceding 5 years; (2) a search of State-based child abuse and neglect registries and databases in the State where the child care staff member resides, and each State where such staff member resided during the preceding 5 years; (3) a search of the National Crime Information Center; (4) an FBI fingerprint check using the Integrated Automated Fingerprint Identification System; and (5) a search of the National Sex Offender Registry established under the Adam Walsh Child Protection and Safety Act of 2006 (42 U.S.C. 16901 et seq.).
The state will reimburse agencies for the cost of background check fees and processing costs. This law will go into effect 90 days after the adjournment of the Legislature’s special session. |
| Impact(s): Maine child care facilities |
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| OKLAHOMA: Medical marijuana law passed in Oklahoma; includes explicit employment anti-discrimination provisions |
Summary: Passed on June 26, 2018, this new law provides physicians broad discretion in prescribing medical marijuana to patients. Effective thirty days later on July 26, 2018, the law will permit license holders in Oklahoma to legally possess three ounces or less on their person and eight ounces or less in their residence. Eligible applicants must be 18 years of age or older, however, there are circumstances under which someone younger may qualify to apply for a license.
Most notable for employers, the law includes anti-discrimination provisions that will protect medical marijuana license holders in the employment context. Specifically, absent the "imminent" loss of a monetary or licensing-related benefit under federal law or regulations, "an employer may not discriminate against a person in hiring, termination, or imposing any term or condition of employment or otherwise penalize a person" based on the individual's status as a medical marijuana license holder. Additionally, employers may not take action against the holder of a medical marijuana license solely based upon the status of the employee as a medical marijuana license holder or the results of a drug test showing positive for marijuana or its components.
Employers may take action against a holder of a medical marijuana license if the holder uses or possesses marijuana while in the holder's place of employment or during the hours of employment.
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| Impact(s): Oklahoma employers |
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| SOUTH CAROLINA: Gov. McMasters’ veto overridden by General Assembly to allow expungement of minor criminal convictions |
| Summary: On Dec. 27, 2018, a new law will take effect which will allow South Carolina residents to expunge minor criminal violations from their records. Employers will be able to inquire about an applicant’s criminal convictions but will not be permitted to ask about expunged records. The new legislation provides immunity to employers from lawsuits for negligent hiring or negligent retention when the claims are based on expunged criminal matters. |
| Impact(s): South Carolina employers |
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| ST. LOUIS, MISSOURI: County Executive Steve Stenger signs Executive Order to “Ban the Box” on County job applications. |
| Summary: On June 11, 2018, County Executive, Steve Stenger, signed an Executive Order to “Ban the Box” on county job applications. It went into effect immediately upon signing. The order will delay an employer’s right to ask criminal history questions of applicants until later in the hiring process. It does not prevent county employers from conducting criminal background checks, but a criminal record cannot automatically exclude a candidate from consideration for most St. Louis County government jobs. The Order does not apply to positions related to criminal justice or justice services; the St. Louis County Police Department; judicial administration; municipal courts; the prosecuting attorney’s office; the County Counselor’s office or to park rangers. |
| Impact(s): St. Louis County government agencies |
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| COURT OPINIONS |
| MISSOURI COURT OF APPEALS FOR THE WESTERN DISTRICT: Appeals court upholds Circuit Court ruling that staffing agency was not in violation of the FCRA |
Summary: A Missouri state appeals court refused to revive a proposed class action accusing a staffing company of violating the FCRA’s stand-alone disclosure requirement, concluding that plaintiff alleged only bare procedural violations and not concrete injuries as is required to establish legal standing to pursue his claims. The court stated that the injury plaintiff alleged he sustained wasn't enough to pass legal muster. "While alleging that [the employer] knowingly violated the FCRA by using a disclosure form that contained extraneous information – a bare procedural violation – … [plaintiff] did not plead any concrete or actual injury," the panel said. "Although he testified during a deposition that the form confused him, he did not plead that it did so or that he did not see the disclosure or authorize [the employer] to obtain a consumer report."
Although he was placed in a position, the plaintiff was terminated after just a few days since the report revealed that he had been on probation in 2009 for a felony attempted assault conviction several years earlier. Plaintiff had incorrectly asserted that he hadn't been on probation for a felony in the preceding seven years when he filled out the employment application, according to the appellate memo. In a footnote, the panel noted that plaintiff testified he hadn't read a portion of the background check form he signed that stated he could be fired for falsifying or omitting information. "[Plaintiff] testified that he did not read this or know at the time that his response about probation was incorrect, because when he signed the form he was 'under the assumption that it was five years, not seven,'" the panel pointed out in its memo. "His misreading of or failure to read a document that he signed is responsible for his termination from employment, any FCRA violations notwithstanding." |
| Impact(s): FCRA compliance – for general legal review |
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| OTHER UPDATES |
| FAIR CREDIT REPORTING ACT: National food and beverage company settles FCRA class action for $1.19M |
| Summary: The lead plaintiff in this class action has asked a federal court to preliminarily approve a $1.19 million class settlement with a subsidiary of a large food and beverage company, with the underlying action alleging a violation of the FCRA’s “stand-alone” disclosure requirement. The company denies any wrongdoing but has settled the case with an estimated class of 23,133 consumers. Under the terms of the settlement, members will receive a pro rata share of the settlement fund estimated to be at least $30.73. |
| Impact(s): FCRA compliance – for general legal review |
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