| ENACTED LEGISLATION |
| ILLINOIS: Illinois Legislature amends marijuana law, bringing clarity, relief to employers with workplace drug-testing programs |
| Summary: On June 25, 2019, Illinois Governor J.B. Pritzker signed the Cannabis Regulation and Tax Act (the "Act") into law. This Act legalizes the use, possession, and even cultivation of marijuana by adults in Illinois age 21 and older, starting January 1, 2020. As initially enacted, the Act's provisions appeared to limit employers' ability to maintain and enforce drug-free workplace programs prohibiting marijuana use, and more specifically, to take adverse action based merely on marijuana test results absent "articulable symptoms" of impairment. Partially in response to these concerns, the Illinois legislature passed amendments to the Act on November 14, 2019, that make it clear that employers may continue to implement policies prohibiting workers from using marijuana or marijuana products, and generally allowing the employer to take adverse action based on application of reasonable testing programs. This bill is now awaiting Governor Pritzker's signature.
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| Impact(s): All Illinois employers |
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| NEW YORK: New background check regulations for daycare providers |
| Summary: Effective September 25, 2019, New York State now requires that all daycare facilities perform state and national criminal history checks for any prospective operator, director, employee or volunteer at a child day care center, including fingerprinting. Prior to this regulation, only a state background check was required.
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| Impact(s): New York State child care providers |
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| WATERLOO, IOWA: Ban the Box enacted |
| Summary: The City of Waterloo has enacted the state's first ban the box legislation. Effective July 1, 2020, the Ordinance will prohibit an employer from inquiring, or requiring any person to disclose, any convictions, arrests, or pending criminal charges during the application process. The application process begins when the applicant inquires about employment and ends when the employer extends a conditional offer of employment. In addition, the employer may not make an adverse hiring decision based on the applicant's record of arrests or pending criminal charges, make an adverse hiring decision based on any criminal records that have been expunged or pardoned, or make an adverse hiring decision based on an applicant's criminal record without a legitimate business reason.
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| Impact(s): Waterloo, Iowa employers |
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| PROPOSED LEGISLATION |
| FLORIDA: Bill proposed to protect medical marijuana users from workplace discrimination |
| Summary: SB 962 was filed on November 18, 2019 and its intention is to protect medical marijuana users from workplace discrimination. A similar bill was filed in the House of Representatives earlier in the month. The bill would prohibit discrimination of medical marijuana users, including prohibiting the use of using positive test results to fire or hire an applicant, but it would still allow employers to punish workers who possess or use medical marijuana during normal business hours. In addition, jobs with "safety-sensitive" duties would be exempt from the rules. It also will allow employers to take "adverse personnel action" against any employee who is found to be impaired and not able to perform his/her duties due to medical marijuana use.
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| Impact(s): Florida employers |
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| ST. LOUIS, MISSOURI: Ban the Box proposed for private employers |
| Summary: Alderman Collins-Muhammad introduced a bill that would prohibit private employers from basing job hiring and promotion decisions on an applicant's criminal history record and inquiring about an applicant's criminal history until after the offer of employment.
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| Impact(s): St. Louis, Missouri private employers |
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| COURT OPINIONS |
| U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT: Court affirms Article III standing |
| Summary: The Ninth Circuit issued an opinion stating that in order to withstand a motion to dismiss, a consumer-plaintiff is only required to allege that a credit report was obtained for a purpose not authorized by the Fair Credit Reporting Act (FCRA), regardless of whether the report is published or otherwise used by the third party.
In arriving at this opinion, the Ninth Circuit considered two prime factors:
- whether a concrete injury was inflicted on the consumer as a result of a third-party obtaining a credit report for a purpose not permissible by the FCRA; and
- whether the consumer-plaintiff must plead the third party's actual unauthorized purpose in obtaining the report to survive a motion to dismiss.
The opinion arrived at by the Ninth Circuit was a rejection of an earlier district ruling in the case of Nayab v. Capital One Bank. In June 2016, Nayab learned that Capitol One had submitted numerous inquiries on her credit report. Nayab sued, claiming that the unauthorized inquiries violated the FCRA since she had never conducted any business with nor incurred any financial obligations to Capitol One. Upon Capitol One moving to dismiss, the plaintiff filed an amended complaint. The complaint cited the various permissible purposes under the FCRA for securing a credit report and alleged that Capitol One's credit report inquiries did not align with any of those purposes. Ultimately, this case was dismissed, citing that regardless of the FCRA permissibility of the financial institution's credit inquiries, the plaintiff did not suffer identifiable harm. The district court also determined that only alleging the defendant did not have permissible purpose for obtaining the credit report was insufficient.
In this latest opinion, the Ninth Circuit held that Nayab had standing to pursue these FCRA claims because "obtaining a credit report for a purpose not authorized under the FCRA violates a substantive provision of the FCRA," and thus "Plaintiff need not allege any further harm to have standing." The Ninth Circuit also found that the district court incorrectly held that the plaintiff carried the burden to plead Capitol One's purpose in procuring the credit report. It was determined that assigning burden to the plaintiff was unjust, as that would require the plaintiff to have knowledge of the defendant's intentions. As a result of these findings, a split Ninth Circuit reversed the district court's original dismissal and remanded the case to the district court.
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| Impact(s): FCRA compliance – for general legal review |
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