| ENACTED LEGISLATION |
| CONNECTICUT: Reminder: salary history question prohibited as of Jan. 1, 2019. |
| Summary: As reported in our June 1 Legislative Alert, "An Act Concerning Pay Equity" was signed into law on May 22, 2018, which prohibits an employer from inquiring into or from directing a third party to inquire about a prospective employee's wage and salary history unless a prospective employee has voluntarily disclosed such information. This Act takes effect on Jan. 1, 2019. Connecticut employers should review and revise their employment applications and process by January 1 to ensure that they comply with the new Act.
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| Impact(s): Connecticut employers |
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| MASSACHUSETTS: New limitations and disclosure requirements added for criminal background information requests |
Summary: Effective Oct. 13, 2018, employers are required to include new language on any forms requesting criminal background information from employees or applicants in the commonwealth. Any such form must contain the following statement (in addition to other required statements regarding not disclosing offenses as a minor and sealed records):
"An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 of the General Laws may answer ‘no record' with respect to an inquiry herein relative to prior arrests, criminal court appearances or convictions. An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 of the General Laws may answer ‘no record' to an inquiry herein relative to prior arrests, criminal court appearances, juvenile court appearances, adjudications or convictions."
Additionally, the new limitations reduce the permissible period for employers to ask applicants about misdemeanor convictions from five years to three years. Employers will not be able to ask about misdemeanor convictions that are older than three years unless there is a subsequent offense within the three-year period.
Employers would be well-advised to review their hiring forms to confirm that they are in compliance with these new requirements and ensure that individuals involved in the hiring process understand the commonwealth's new limitations on criminal history inquiries.
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| Impact(s): Massachusetts employers |
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| MICHIGAN: Michigan voters pass law to legalize recreational marijuana |
Summary: Effective Dec. 6, 2018, it will be legal in Michigan for persons 21 years of age or older to use and possess marijuana and marijuana products. While the law does not impact an employer's right to maintain and enforce existing drug policies, employers should review their policies to ensure they appropriately describe the employer's expectations and practices regarding drug use, possession, and testing. Employers should also consider reminding employees of their drug policies, explaining that those policies are unaffected by the new law, and outlining the consequences of violating those policies.
Specifically, the law states: "This act does not require an employer to permit or accommodate conduct otherwise allowed by this act in any workplace or on the employer's property. This act does not prohibit an employer from disciplining an employee for violation of a workplace drug policy or for working while under the influence of marihuana. This act does not prevent an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person's violation of a workplace drug policy or because that person was working while under the influence of marihuana." |
| Impact(s): Michigan employers |
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| SUFFOLK COUNTY, NEW YORK: County enacts salary history ban |
Summary: Effective June 30, 2019, The Restricting Information on Salaries and Earnings Act will prohibit employers with four or more employees and their agents from inquiring about job applicants' wage or salary history during the hiring process. The key provisions of the bill are as follows:
- Inquire, whether in any form of application or otherwise, about a job applicant's wage or salary history, including but not limited to, compensation and benefits. For purposes of this subdivision, "to inquire" means to ask an applicant or former employer orally, or in writing, or otherwise or to conduct a search of publicly available records or reports.
- Rely on the salary history of an applicant for employment in determining the wage or salary amount for such applicant at any stage in the employment process, including at offer or contract.
The employer may, however, seek to confirm wage information if required by applicable law or pursuant to a collective bargaining agreement. |
| Impact(s): Suffolk County employers |
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| PROPOSED LEGISLATION |
| WESTCHESTER COUNTY, NEW YORK: Legislation to "Ban the Box" passed; awaits county executive's signature |
Summary: On December 3, 2018, the Westchester County Board of Legislators passed a local law prohibiting employers from inquiring about an applicant's criminal conviction or arrest record in employment applications. The law will be effective 90 days after it is signed by the county Executive. It also bans employment advertisements, solicitations or publications containing any "limitation, or specification in employment based on a person's arrest record or criminal conviction." An Executive Order was signed earlier this year that banned criminal conviction questions on any applications for employment within the county government.
Notably, the new law allows an employer to make a criminal history inquiry after the employee submits his/her employment application, which is unlike New York City's "Ban the Box" law which only allows for criminal history inquiries after a conditional offer of employment is extended. However, the Westchester County law reiterates the employer's obligation to perform an analysis of the applicant's criminal record and other factors under New York State Correction Law Article 23-A before taking any adverse employment action based on the applicant's criminal history.
This law does not apply to applications for employment as a police officer, peace officer, or at a law enforcement agency nor does it apply to "any actions taken by an employer pursuant to any state, federal or county law that requires criminal background checks for employment purposes or bars employment based on criminal history."
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| Impact(s): Westchester County employers |
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| COURT OPINIONS |
| U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT: Confusing background check disclosures may be sufficient for standing |
Summary: On Nov. 29, 2018, the Ninth Circuit Court of Appeals issued a decision in a FRCA class-action case against a grocery chain on appeal after the U.S. District Court for the District of Idaho granted the defendant's motion to dismiss the case for lack of standing.
The Ninth Circuit agreed with the lower court that the plaintiff did not establish the requisite standing because she alleged that the employer's job application forms were not FCRA-compliant but did not articulate how those alleged violations harmed, or presented a material risk of harm to, her protected interests.
The court opined that the plaintiff might have intended to allege that she was confused by the FCRA waiver and authorization on the forms but that the facts were not sufficiently plead, even for the lower court to reach an inference of confusion. Still, the Ninth Circuit remanded on the basis that it was error for the lower court not to grant Plaintiff leave to amend the operative complaint.
In briefly discussing the possibility that Mitchell was confused, the Ninth Circuit referenced its own decision in Syed v. M-I, LLC, 853 F.3d 492, 499-500 (9th Cir. 2017). In Syed, the Court held that "the [FCRA] disclosure requirement at issue, 15 U.S.C. § 1681b(b)(2)(A)(i), creates a right to information by requiring prospective employers to inform job applicants that they intend to procure their consumer reports as part of the employment application process."
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| Impact(s): FCRA compliance – for general legal review |
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| U.S. DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA: Employer's use of applicant's criminal history record to rescind a conditional job offer did not violate Pennsylvania law |
Summary: A wrongful discharge claim under the Pennsylvania Criminal History Records Information Act (CHRIA) was brought against a national courier delivery service company for rescinding a conditional job offer of a senior programmer analyst position based on the combination of the plaintiff's three misdemeanor convictions. The plaintiff was working as a vendor employee for the company when the company conditionally offered the plaintiff a full-time programmer/application developer position but his bad check and voter impersonation convictions raised concerns about his honesty. The company's policy provided that all theft convictions were job-related as it viewed them as indicative of honesty. However, the company still performed an individualized inquiry into each of plaintiff's convictions prior to determining that they rendered him unsuitable for the job, even though it was a position he had been already working in as a vendor employee.
The court granted the defendant's motion for summary judgment finding that the plaintiff failed to point to any evidence from which a reasonable factfinder could conclude that defendant considered his convictions in an arbitrary way when it revoked his conditional job offer as opposed to considering them as they related to his suitability for employment as a senior programmer analyst.
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| Impact(s): Pennsylvania employers |
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| OTHER UPDATES |
| CONSUMER FINANCIAL PROTECTION BUREAU: Senate Confirms New Consumer Financial Protection Bureau Director |
| Summary: On Dec. 6, 2018, the U.S. Senate voted 50-49 (in a party-line vote) to confirm Kathleen L. Kraninger as the next director of the Consumer Financial Protection Bureau (CFPB). Kraninger has served as an associate director at the Office of Management of Budget (OMB) since early 2017. Kraninger will replace CFPB Acting Director Mick Mulvaney (who also serves as the director of OMB).
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| Impact(s): All employers |
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