PROPOSED LEGISLATION
ARIZONA: Maricopa County will eliminate criminal conviction question from job applications
Summary: Maricopa County, Arizona will remove the question related to prior criminal convictions from most job applications. Starting Jan. 1, 2018, questions about an applicant's criminal past will no longer be allowed on the initial job application, unless required by specific departments.
Impact(s): Maricopa County public employers
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FEDERAL: U.S. Department of Transportation expands drug testing
Summary: TEffective Jan. 1, 2018, the U.S. Department of Transportation will amend its drug testing program regulation to add four semi-synthetic opioids (hydrocodone, hydromorphone, oxymorphone, and oxycodone) to its drug-testing panel. Some common names for these semi-synthetic opioids include OxyContin®, Percodan®, Percocet®, Vicodin®, Lortab®, Norco®, Dilaudid® and Exalgo®.
Impact(s): Employers subject to DOT regulations
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NEW JERSEY: State strengthens "Ban the Box" protections for applicants
Summary: New Jersey has amended its Opportunity to Compete Act to prohibit certain employment discrimination based upon expunged criminal records.

Prior law prohibited employers from requiring an applicant to complete any employment application that made any inquiries regarding an applicant's criminal record during the initial employment application process. The new law specifically includes expunged criminal records as also being off-limits. Oral or written inquiries by employers and online applications will be held to the same standard.
Impact(s): New Jersey employers
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COURT OPINIONS
U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA: Transit authority to pay $6.5M to resolve claims that background check policy had disparate impact on African Americans
Summary: A federal court in the District of Columbia has signed off on a $6.5 million settlement agreement resolving class allegations that a transit authority enforced a criminal background check policy that had a disparate impact on African-American job applicants and employees. The court granted the parties' joint motion for preliminary approval, approved notice to class members, and conditionally certified a civil damages class comprised of members of previously certified classes who have not opted out. The transit authority denied any wrongdoing or liability and maintains that the challenged screening policy was not discriminatory and was consistent with business necessity. It did, however, revise its policy.
Impact(s): Background screening compliance – for general legal review
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U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS: Judge rules the EEOC has turned over enough documents in hiring bias suit
Summary: A Chicago federal magistrate judge has largely rejected a discount retail chain's effort to squeeze more information from federal regulators in the retailer's efforts to defend against a discrimination suit challenging the company's background screening policy. In 2013, the U.S. Equal Employment Opportunity Commission (EEOC) filed suit against the retailer, alleging the company used criminal record checks and other hiring practices, such as credit checks and drug tests, to exclude minorities from employment.

Specifically, the chain requested that the EEOC be required to identify the specific job positions it believes are affected by the allegedly discriminatory background check policy and what parts of the policy are allegedly to blame. The chain also wants to know what policies the EEOC believes should instead be in place and how those policies would be consistent with the company's need to protect itself and the public.
Impact(s): Background screening compliance – for general legal review
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U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA: Job applicant with criminal background may have been denied employment in violation of Fair Credit Reporting Act
Summary: A major insurance company may have violated the Fair Credit Reporting Act when it denied employment to an applicant based on her criminal record. The plaintiff alleged that the company's initial adjudication of her report as a "fail" was a final employment decision and thus violated the FCRA's pre-adverse action requirement, which allows consumers an opportunity to dispute the content of their reports. A federal district court in Virginia denied the company's summary judgment motion, finding a genuine material dispute about whether the company's initial negative decision regarding the applicant was a tentative internal decision or a final decision.
Impact(s): FCRA compliance – for general legal review
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OTHER UPDATES
FAIR CREDIT REPORTING ACT: U.S. Appellate Court urged to revive FCRA background check suit
Summary: The Third Circuit was urged during oral arguments to revive class claims accusing a transportation company of failing to follow the FCRA's "stand-alone" disclosure and pre-adverse requirements, with the plaintiff arguing that there is standing because harm flowed from the fact that the workers were denied an opportunity provided under the FCRA to review and rebut the reports. A federal district court previously threw out the case after concluding that the would-be workers failed to show that the reports contained inaccurate information that had harmed their employment prospects (thus finding that their allegations amounted to only bare procedural violations).
Impact(s): FCRA compliance – for general legal review
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U.S. SUPREME COURT: Spokeo urges justices to revisit last year's standing ruling
Summary: Spokeo, a people search website, is urging the U.S. Supreme Court (SCOTUS) to revisit the Article III standing bar it set last year in a dispute over alleged inaccuracies on a consumer report, arguing that the justices' pronouncement that some intangible injuries could meet the "standing" threshold has spurred "widespread confusion" that "cries out" for an immediate resolution. SCOTUS had previously ruled that plaintiffs cannot rely on mere statutory violations to establish standing but must instead allege some tangible or intangible concrete injury. This petition was filed after the Ninth Circuit for the second time concluded that the plaintiff had established standing by alleging an intangible statutory injury without any additional harm, finding that Congress had crafted the FCRA provisions at issue to protect consumers' concrete interests in accurate consumer reporting about themselves.

The plaintiff responded by urging the Court to refrain from taking up the dispute over Article III standing for a second time, arguing that the high court had made clear what harm was necessary for standing in its ruling from last year.
Impact(s): FCRA compliance – for general legal review
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