Legislative Alert

ENACTED LEGISLATION

ALABAMA: Restriction on the salary history question

Summary: Effective August 1, 2019, the new law will prohibit employers from refusing to interview or hire applicants that decline to reveal their salary history. It does not prohibit an employer from asking a prospective employee about their salary history.

Impact(s): Alabama employers

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COLORADO: Governor signs law to "ban the box"

Summary: Effective September 1, 2021, employers may not state in an advertisement or on an application that a person with a criminal history may not apply for a position. Additionally, employers may not ask about an applicant's criminal history on the initial application. Employers will still be permitted to conduct background checks under the new law.

The Act provides an exemption if the federal, state or local law prohibits an individual from holding a job position with a certain criminal background, or if employers are legally required to conduct a criminal history record review for a specific job. For the first two years, the Act will only affect employers who have 11 or more employees.

Impact(s): Colorado employers

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PROPOSED LEGISLATION

NEW YORK: Labor law may be amended to include ban on salary history inquiries

Summary: If enacted, SB 6549 will prohibit employers from asking an applicant or current employee about his/her wage or salary history. In addition, the employer may not refuse to interview or hire an applicant or current employee based on his/her prior wage or salary history. Applicants and employees may voluntarily disclose their salary history for negotiation purposes, at which time an employer would be permitted to confirm salary history if at the time an offer of employment with compensation is made, the applicant or employee responds to the offer by providing prior salary history to support a salary higher than that offered by the employer.

Impact(s): New York employers

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OTHER OPINIONS

U.S. DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA: Class action settlement reached for claims of background check violations

Summary: A large convenience store chain agreed to pay almost $2 million to settle claims that it allegedly violated the Fair Credit Reporting Act while obtaining background checks on approximately 60,0000 prospective employees. The claim against the store stated that it violated the FCRA by not providing potential employees with a "standalone" notice of a background check being performed.

Impact(s): FCRA compliance – for general legal review

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U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK: Settlement reached in criminal background check suit

Summary: A $1.3 million settlement was reached between a large indoor entertainment arena and 389 applicants for allegedly denying employment to the applicants due to the content of their background check without providing them with a copy of the report in violation of the Fair Credit Reporting Act. The settlement also mandates that the employer require applicants to disclose criminal records only going back five years and inform them about the content of the reports and their FCRA rights before denying a job and applicants will no longer need to disclose criminal convictions for possession of marijuana unless they were convicted for intent to sell. The employer will also reduce the length of its bar on applicants reapplying for positions who were disqualified for failing to fully report their criminal history and will not revoke conditional employment offers due to failure to disclose open warrants.

Impact(s): FCRA compliance – for general legal review

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U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK: Suit filed for alleged violation of Title VII and the Fair Credit Reporting Act

Summary: Plaintiff seeks class action status in a suit filed against a large retailer alleging violations of the FCRA and Title VII for unlawfully firing minority workers based on criminal convictions that come up in undisclosed background checks. In addition, plaintiff contends that the employer failed to notify the candidates that their criminal records have been used to deny them employment without regard to the nature of the offense found in those reports. Plaintiff was fired after being confronted about her conviction from the background report without being provided a copy. The suit further states that although plaintiff attempted to explain the conviction was due to traffic stop where she was unable to provide proof of insurance, she was terminated just days later. The lawsuit seeks to certify a class of individuals who were allegedly denied employment from more than 800 stores throughout the country.

Impact(s): FCRA compliance – for general legal review

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