| ENACTED LEGISLATION |
| MAINE: Maine prohibits employers from taking adverse employment actions based on off-duty marijuana use |
Summary: On Nov. 8, 2016, Maine voters approved "Question 1 – An Act to Legalize Marijuana" ("the Act"), which allows for, among other things, the recreational use of marijuana. The Act contains within it an antidiscrimination in employment provision, which became effective on Feb. 1, 2018, making it the first law of its kind in the nation because it protects employees and applicants from adverse employment action based on their off-duty and off-site use of marijuana.
The Act prohibits employers from refusing to employ or otherwise taking any adverse action against any person age 21 or older based on that individual's "consuming marijuana outside the ... employer's ... property." However, the Act permits employers to bar the use and possession of marijuana "in the workplace" and to "discipline employees who are under the influence of marijuana in the workplace." Employers may no longer test job applicants for marijuana. Moreover, according to the Maine Department of Labor, an employee's positive drug test, by itself, will not be sufficient to prove that the employee is "under the influence" of marijuana. Employers required to comply with federally mandated testing for marijuana (e.g. U.S. Department of Transportation regulated employers) are not subject to the Act.
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| Impact(s): Maine employers |
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| MARYLAND: Maryland Senate overrides governor's veto of college admissions "Ban the Box" bill |
| Summary: The Maryland Senate overrode a veto from Gov. Larry Hogan, voting 32-15 to enact a bill barring colleges and universities from asking about arrests and convictions on initial application forms. Colleges and universities remain free to ask about arrests and convictions at later stages of the admission process. |
| Impact(s): Maryland colleges and universities |
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| OREGON: Oregon enacts law requiring schools to adopt background check policies for volunteers |
Summary: House Bill 2992 states that: If a school district or public charter school allows volunteers to have direct, unsupervised contact with school children, the school district board or public charter school governing body must adopt and implement a policy that requires those volunteers to undergo a background check. Further, if a private school allows volunteers to have direct, unsupervised contact with school children, the governing body of the private school may adopt and implement a policy that requires those volunteers to undergo a background check.
Upon request from a school district, a private school or a public charter school or a school district, private school or public charter school contractor and with consent from the individual, the Department of Education may conduct an Oregon criminal records check using the Law Enforcement Data System for screening and a state or nationwide criminal records check under ORS 181A.195.
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| Impact(s): Oregon schools |
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| VERMONT: Vermont legalizes recreational marijuana, provides protections for employers |
Summary: Beginning July 1, 2018, Vermont residents will be able to legally possess and use recreational marijuana, under a new law. Gov. Phil Scott signed the law on Jan. 22, 2018, legalizing the possession and use by adults 21 and older of up to one ounce of marijuana, as well as the cultivation of a limited number of plants.
The new recreational marijuana law provides some protections to employers operating in the state. Specifically, the statute affirms that nothing in the new law will: (1) "require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace; (2) prevent an employer from adopting a policy that prohibits the use of marijuana in the workplace; (3) create a cause of action against an employer that discharges an employee for violating a policy that restricts or prohibits the use of marijuana by employees; or (4) prevent an employer from prohibiting or otherwise regulating the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana on the employer's premises." |
| Impact(s): Vermont employers |
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| BEAVER COUNTY, PENNSYLVANIA: Beaver County "bans the box" on county job applications |
| Summary: Beaver County Commissioners approved a measure to stop asking job applicants about criminal history on county employment applications. The new policy will postpone criminal background checks until after an applicant has been interviewed for a position, with exceptions for "public-safety-sensitive positions."
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| Impact(s): Beaver County, Pennsylvania public employers |
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| KANSAS CITY, MISSOURI: Kansas City council passes "Ban the Box" ordinance |
Summary: Kansas City joins a growing number of communities that bar employers from asking job applicants to check a box on applications disclosing their criminal histories. The city council approved a "Ban the Box" ordinance that bars employers from asking about criminal records until after it has been determined that the individual is otherwise qualified for the position, and only after the applicant has been interviewed for the position. The inquiry may then be made of all applicants who are "within the final selection pool of candidates." Established prohibitions under state law, such as those barring sex offenders from working around children, still apply.
The ordinance also limits employers' substantive hiring decisions by requiring that an employer basing a hiring or promotion decision on an applicant's criminal history be able to demonstrate that the decision was based on "all available information" including consideration of the frequency, recentness and severity of criminal record. The ordinance becomes effective on June 9, 2018.
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| Impact(s): Kansas City, Missouri employers |
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| PROPOSED LEGISLATION |
| FEDERAL: House considering bill establishing FBI fingerprint-based background checks for anyone wanting to work with children, the elderly, or the disabled |
| Summary: The bipartisan Child Protection Improvements Act (CPIA), introduced by Rep. Schiff (D-CA) and Rep. Bishop (R-MI), would make FBI fingerprint-based background checks permanently and widely available to youth-serving organizations nationwide. With the new bill, anyone wanting to work with children, the elderly, or the disabled as an employee or volunteer would be required to submit their fingerprints to be checked against the FBI's database. The bill does not require organizations to utilize FBI fingerprint background checks, but only makes them available to those wishing to utilize them.
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| Impact(s): Organizations that work with children, the elderly, or the disabled |
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| NEW JERSEY: Bill proposed to limit use of credit reports in employment decisions |
| Summary: New Jersey Senate Bill 545 states that: No employer or employer's agent, representative, or designee shall seek to obtain or require a current or prospective employee to provide or consent to the creation of a credit report that contains information about the current or prospective employee's credit history, credit score, credit account balances, payment history, savings or checking account balances, or savings or checking account numbers, unless the employer is required by law to obtain a credit report or credit history is an established bona fide occupational qualification of a particular position or employment classification. |
| Impact(s): New Jersey employers |
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| NEW YORK: Bill introduced to reverse "Ban the Box" for state schools |
| Summary: Sen. Kenneth P. Lavalle (R-NY) has introduced a bill to reverse a State University of New York (SUNY) "Ban the Box" initiative enacted in late 2016 that no longer asks applicants for admission about criminal history on the initial application. The proposed law would require state-operated institutions to ask each applicant whether he or she has ever been convicted of a violent felony offense. |
| Impact(s): New York state-operated institutions |
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| RHODE ISLAND: Bill introduced to prohibit salary history inquiries |
| Summary: House Bill 7115 would make it an unlawful employment practice for any employer to seek, orally or in writing, salary history and benefits information about an applicant for employment. |
| Impact(s): Rhode Island employers |
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| VIRGINIA: Senate Passes "Ban the Box" Bill |
| Summary: On Jan. 19, 2018, the Virginia Senate voted 23 to 16 to "Ban the Box" on state employment applications. The bill (SB 252) would bar state agencies and localities from including on an employment application a question about whether the prospective employee has ever been arrested, charged with, or convicted of a crime – with certain exceptions. A prospective employee could not be asked if he or she has been convicted of a crime unless he has received a conditional offer of employment. The offer could be withdrawn if the worker has a conviction that directly relates to the position's duties. The bill now goes to the Virginia House of Delegates. |
| Impact(s): Virginia public employers |
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| WASHINGTON: Washington House votes to "Ban the Box" |
| Summary: The Fair Chance Act (HB 1298), more commonly known as the "Ban the Box" bill, passed on a mostly partisan vote after supporters said it was important to give people a second chance and opponents said was unfair to businesses. If passed by the Senate and signed by Gov. Jay Inslee, this would prevent employers from asking about criminal records and conducting criminal background checks until after the applicant is determined otherwise qualified for the position. |
| Impact(s): Washington employers |
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| PROVIDENCE, RHODE ISLAND: Ordinance introduced to prohibit salary history inquiries |
| Summary: An ordinance sponsored by Council President David Salvatore would bar public and private companies from inquiring into an applicant's salary or requiring them to provide their previous salary. The City Council Ordinance Committee has approved the proposal and the full council will vote on it next. |
| Impact(s): Providence, Rhode Island employers |
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| COURT OPINIONS |
| U.S. SUPREME COURT: SCOTUS declines to review its Spokeo standing decision |
| Summary: The U.S. Supreme Court won't rethink the Article III standing bar it set in its landmark 2016 Spokeo decision, rejecting a petition from Spokeo Inc. to resolve what it called "widespread confusion" over what types of intangible injuries can establish standing. |
| Impact(s): FCRA compliance – for general legal review |
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| U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA: D.C. Circuit holds that CFPB structure is constitutional |
Summary: An en banc panel of D.C. Circuit judges overturned a ruling that would have allowed President Trump to fire the Consumer Financial Protection Bureau (CFPB)'s director at will, preserving the agency's current structure and setting up a potentially challenge to the U.S. Supreme Court. The full panel of D.C. Circuit judges voted 7-3 to reverse a split October 2016 panel decision that found the CFPB's single-director leadership structure and restriction allowing the president to fire the director only for cause was unconstitutional.
The D.C. Circuit "granted en banc review to consider whether the federal statute [the Dodd-Frank Act] providing the Director of the [CFPB] with a five-year term in office, subject to removal by the President only for ‘inefficiency, neglect of duty, or malfeasance in office,' ... is consistent with Article II of the Constitution."
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| Impact(s): For general legal review |
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| U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA: D.C. Circuit holds that a statutory violation alone is not sufficient to confer Article Ill standing under the FCRA |
| Summary: Commercial truck drivers who sued the U.S. Department of Transportation (DOT) over allegedly inaccurate safety records in the DOT's Motor Carrier Management Information System database lacked standing to pursue their FCRA claims, the D.C. Circuit ruled, affirming, for the most part, a district court's order dismissing the case. As the U.S Supreme Court held in its 2016 decision in Spokeo, a statutory violation alone is not sufficient to confer Article Ill standing; there must be a concrete injury. The mere presence of inaccurate information in the database, without a showing of resulting harm, was not sufficient. The plaintiffs, commercial truck drivers, had been cited for safety-related violations, but all of the citations were either dismissed or the driver was found not guilty at trial. The drivers requested that the citations be removed from the DOT database but the requests were rejected because, at the time, the database only contained initial citations, not adjudicated outcomes. However, two drivers whose inaccurate information had been disseminated to prospective employers were entitled to proceed with their claims, the appeals court said, reversing the court below as to these plaintiffs. |
| Impact(s): FCRA compliance – for general legal review |
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| U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA: Employer settles class action that alleged violations of FCRA's "pre-adverse" action requirements |
| Summary: A proposed settlement has been reached in a class action alleging that an employer violated the FCRA by failing to provide applicants with a copy of their reports and a Summary of Rights before taking an adverse employment action. Defendant has agreed to pay $300 to each class member (up to $494,200). |
| Impact(s): FCRA compliance – for general legal review |
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| U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA: Federal court dismisses proposed class action alleging violations of FCRA pre-adverse action requirements based on Article III standing |
| Summary: A Pennsylvania federal district court granted a nationwide retailer's motion to dismiss a proposed class action alleging that the retailer violated the FCRA by failing to follow the pre-adverse action process. The allegations stem from the retailer's alleged practice of sending the final adverse action letter five business days after the pre-adverse letter, resulting in the period between the receipt of the pre-adverse letter and the mailing of the final adverse letter being a maximum of four business days. The court agreed with the employer's argument that Plaintiff lacked standing because she had an opportunity to discuss her background report with the employer after the pre-adverse notice was sent and before the final adverse notice was sent, making her alleged harm nothing more than a "bare procedural violation." |
| Impact(s): FCRA compliance – for general legal review |
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| U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS: Texas federal court blocks EEOC from enforcing its 2012 criminal record guidance against Texas until public has a chance to weigh in |
| Summary: A Texas federal judge endorsed the spirit of U.S. Equal Employment Opportunity Commission's 2012 guidance urging employers to limit their use of criminal background checks in hiring but blocked its enforcement against the state of Texas anyway, saying the agency should have let the public weigh in before publishing the guidance. The court granted partial summary judgment to the state of Texas in its challenge of the guidance, which recommends that employers not ask job applicants about their criminal histories, declining to declare that Texas can consider applicants' histories as it sees fit but finding the EEOC did not follow the Administrative Procedure Act when it issued the 2012 guidance. "The court holds that the guidance ... is a substantive rule issued without notice and the opportunity for comment," Judge Cummings said. The order blocks the EEOC and the U.S. attorney general from enforcing the guidance against the state unless the agency reissues it after letting the public weigh in. But Texas lost on the other two counts – the EEOC may still issue right-to-sue letters in Texas cases, and – more significantly – the court refused to affirm Texas' right to categorically exclude felons from certain jobs. |
| Impact(s): EEOC compliance – for general legal review |
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| OTHER UPDATES |
| FEDERAL TRADE COMMISSION: FTC issues report on privacy and data security |
| Summary: On Jan. 18, the FTC released a report summarizing its efforts to address privacy and data security issues in 2017. The report, covers the FTC's work in the following areas: (1) Enforcement; (2) Advocacy; (3) Workshops; (4) Reports and Surveys; (5) Consumer Education and Business Guidance; and (6) International Engagement. The report includes a description of the FTC's enforcement accomplishments in 2017 across an array of topics including general privacy, data security, credit reporting and financial privacy, international enforcement, children's privacy, and Do Not Call. |
| Impact(s): All employers – for general legal review |
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| NEW JERSEY: New Jersey bans salary history inquiries for state employees |
| Summary: Effective Feb. 1, New Jersey agencies and offices are prohibited from asking job applicants for their compensation history, or investigating the prior salaries of applicants. The move comes via executive order – Gov. Phil Murphy's first order of business taken on Jan. 16, his first day in office. Murphy urged the state legislature to send legislation to his desk banning the practice statewide, pledging to sign it, according to a press release from his office. |
| Impact(s): New Jersey public employers |
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| FAIR CREDIT REPORTING ACT: California judge tentatively grants employer's bid for an early win in an FCRA class action |
| Summary: A California judge tentatively granted a large theme park operator's bid for an early win in a class action arguing that it prevents job applicants with adverse background checks from attending orientation pending possible appeals, which allegedly violates the FCRA's pre-adverse action requirements. Los Angeles Superior Court Judge Ann Jones tentatively granted a motion for summary judgment in favor of the employer. The plaintiffs' attorney has argued that the park tells its casting department that an applicant who receives an unfavorable background check is a "no-hire" and cannot attend orientation before giving the applicant notice, even though the applicant can appeal the findings, arguing that doing so is an "adverse action" under the FCRA. The theme park responded by stating that applicants are told multiple times they cannot begin working without a successful background check. |
| Impact(s): FCRA compliance – for general legal review |
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| FAIR CREDIT REPORTING ACT: Data security company seeks to have FCRA action dismissed based on lack of standing |
| Summary: A data security company seeks to end a putative class action over its employee background checks, arguing the proposed class failed to allege not only that workers were harmed in a concrete way but also that any "investigative" background checks were even performed. The plaintiff alleges that the company failed to follow the FCRA's stand-alone disclosure requirement by including state disclosures, and by "incorporating by reference a five-page privacy policy," according to court filings. |
| Impact(s): FCRA compliance – for general legal review |
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| I-9/E-VERIFY: Penalties increased for Form I-9 and E-Verify violations |
| Summary: The Department of Justice has recently increased fines for Form I-9 and E-Verify related penalties assessed after Jan. 29, 2018 with respect to violations occurring after Nov. 2, 2015. |
| Impact(s): All employers – for general legal review |
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