| ENACTED LEGISLATION |
| FLORIDA: State expands list of employees required to undergo AHCA fingerprint screening |
Summary: Effective July 1, 2018, Florida's Chapter 2018-24 (SB 622) will require additional employees and contractors of health care providers licensed through the Agency for Health Care Administration (AHCA) to undergo Level 2 fingerprint background screening. Specifically, F.S.A. § 408.809 will now expand the definition of "employees" who are required to undergo Level 2 background screening to include: 1) any person who is a "controlling interest"; and 2) any person contracting with a licensee or provider to work 20 hours a week or more who will have access to client funds, personal property, or living areas.
F.S.A. § 408.803 defines "controlling interest" as: (a) The applicant or licensee; (b) A person or entity that serves as an officer of, is on the board of directors of, or has a 5-percent or greater ownership interest in the applicant or licensee; or (c) A person or entity that serves as an officer of, is on the board of directors of, or has a 5-percent or greater ownership interest in the management company or other entity, related or unrelated, with which the applicant or licensee contracts to manage the provider. The term "controlling interest" does not include a voluntary board member.
Additionally, Chapter 2018-24 (SB 622) amends F.S.A. § 395.1055 to now require Level 2 background screening for personnel of distinct part nursing units of hospitals who provide personal care or services directly to clients or have access to client funds, personal property, or living areas.
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| Impact(s): Florida healthcare providers licensed through AHCA |
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| HAWAII: Employers banned from asking about salary history |
| Summary: Hawaii passed SB 2351, which prohibits employers from requesting or considering a job applicant's wage or salary history and from relying on the applicant's salary history to determine benefits or compensation. The law permits employers to engage in discussions with an applicant about the applicant's expectations with respect to salary, benefits and other compensation and if an applicant voluntarily and without prompting discloses salary history, the employer may consider the salary history information in determining salary, benefits, and other compensation and may verify the applicant's salary history. The law takes effect on Jan. 1, 2019. |
| Impact(s): Hawaii employers |
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| UTAH: Utah state agencies given authority to perform background checks |
| Summary: The Utah senate enacted a bill (S. 143) on March 22, 2018 that provides certain state agencies with the authority to require background checks for employees, contractors, and volunteers. The law was also amended with regard to fees for fingerprint cards, name checks, and to register fingerprints (Ch. 427 (S. 143), L. 2018, and Ch. 417 (S. 16), L. 2018, effective July 1, 2018). |
| Impact(s): Utah state agencies |
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| JOHNSON COUNTY, IOWA: Johnson County "bans the box" |
| Summary: On June 14, 2018, Johnson County, Iowa passed legislation that "bans the box," prohibiting government agencies from inquiring into an applicant's criminal history on job applications. Exceptions are provided for positions that require a full background check, such as those working with children or in law enforcement. The County will continue to conduct background checks later in the application process. |
| Impact(s): Johnson County government agencies |
| PROPOSED LEGISLATION |
| FEDERAL: Bill reintroduced to modify FBI criminal background checks |
| Summary: Congressman Bobby Scott reintroduced H.R. 6145, the Fairness and Accuracy in Criminal Background Checks Act of 2018, that would require that "[t]he Attorney General ... establish and enforce procedures to ensure the prompt release of accurate records and information exchanged for employment-related purposes through the records system created under section 534 of title 28, United States Code [i.e. FBI criminal records]." If the Attorney General determines that a record or information is inaccurate, incomplete or cannot be verified, the Attorney General must attempt to complete or verify the record or information, and if the Attorney General is unable to do so, the Attorney General may promptly make any changes or deletions to the record or information. An incomplete record or information includes a record or information that indicates there was an arrest and does not include the disposition of that arrest. |
| Impact(s): All employers for general legal review |
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| COLORADO: Marijuana advocacy group proposes bill that would prohibit employers from firing employees for testing positive for marijuana |
| Summary: The proposed bill, called the Marijuana Consumer Employment Discrimination Protection Bill, is being proposed by NORML, a marijuana advocacy group. It would prohibit employers from firing an employee who tests positive for traces of marijuana unless the employee, "used, possessed, or was impaired by marijuana during the hours of employment." The bill would also require employers to provide evidence that the employee was unable to perform his/her job duties due to marijuana use. Under this bill, medical marijuana users would be viewed as a protected class. The proposed legislation comes from a City of Boulder ordinance. This ordinance prevents employers from making employment decisions based on drug tests unless "specific, objective, clearly expressed facts" are present that would indicate that the employee was under the influence of drugs or alcohol. |
| Impact(s): Colorado employers |
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| OTHER UPDATES |
| "BAN THE BOX": Settlement reached with major global retailer to "Ban the Box" |
| Summary: New York Attorney General Barbara D. Underwood announced a settlement with a global retailer to "Ban the Box" on initial employment applications at its New York City stores after an investigation found that the retailer distributed employment applications inquiring about applicants' criminal histories, in violation of the New York City's Fair Chance Act. Under the settlement, the employer agrees to comply with the New York City law that prohibits employers from inquiring into criminal history on initial employment applications. The employer also agreed to create new policies and training to ensure that its stores across the state comply with the New York State laws requiring individualized assessments of applicant's criminal histories. Further, the retailer has agreed to pay New York State $120,000 in penalties and costs.
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| Impact(s): New York employers |
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| CALIFORNIA SUPREME COURT: California's highest court hears oral arguments on overlapping state background check laws |
Summary: A school bus company argued before California's Supreme Court that it shouldn't be held liable for not complying with California's Investigative Consumer Reporting Agencies Act (ICRAA) that requires employers to get job applicants' consent before conducting background checks because the ICRAA overlaps with another state law – Consumer Credit Reporting Act (CCRA), and thus both are unconstitutionally vague and invalid.
In the underlying action, plaintiff argued that the school bus company violated the ICRAA by failing to ask for prior written consent when ordering employment screening reports. The Superior Court previously ruled in favor of the employer, finding that information in the reports related to both creditworthiness and character and thus rendered the ICRAA unconstitutionally vague. The Second District appellate court later overturned that decision, finding that the two statutes weren't conflicting – the requirements under the ICRAA were simply stricter, but complying with the ICRAA wouldn't violate the CCRA. The California Supreme Court should issue its decision in 90 days or less.
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| Impact(s): California employers |
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| DEPARTMENT OF TRANSPORTATION: Employers must use only the revised DOT Custody and Control Form after June 30, 2018 |
Summary: On Aug. 8, 2017, the Office of Management and Budget approved a revised Federal Drug Testing Custody and Control Form (CCF) and authorized the continued use of the "Old CCF" until June 30, 2018. DOT regulated employers and their service agents (collectors, laboratories, Medical Review Officers) may not use the "Old CCF" for DOT mandated drug test collections after June 30, 2018.
Notably, if an old form is used after June 30, 2018, the collector must provide a signed Memorandum for the Record within 5 business days that states that the incorrect form contains all the information needed for a valid DOT drug test and that the incorrect form was used inadvertently or as the only means of conducting a test, in circumstances beyond your control. It must also list the steps taken to prevent future use of non-Federal forms or expired Federal forms for DOT tests. If this is not completed in 5 business days, the specimen must be reported as "Rejected for Testing". Thus, using the Old CCF can result in delays and increased turnaround times for drug test results.
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| Impact(s): DOT regulated employers |
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| FAIR CREDIT REPORTING ACT: Applicant files FCRA action against staffing firm for alleged pre-adverse action violation |
| Summary: A proposed class action was filed against a healthcare staffing firm, alleging violations of the FCRA's pre-adverse action requirements. Specifically, the plaintiff alleges that she was not properly notified with a copy of the report and an opportunity to dispute before the employer took an adverse action.
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| Impact(s): FCRA compliance – for general legal review |
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