| ENACTED LEGISLATION |
| PENNSYLVANIA: Gov. Wolf signs executive order to ban salary history inquiries for state agencies |
| Summary: Gov. Tom Wolf signed an Executive Order named "Equal Pay for Employees of the Commonwealth" on June 6, 2018, which prohibits employers under his jurisdiction from inquiring about an applicant's salary history. It will take effect in 90 days. |
| Impact(s): Pennsylvania public agencies |
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| WASHINGTON: New "Ban the Box" law now in effect |
Summary: Washington's new "Ban the Box" law went into effect on June 7, 2018, and may require employers to review and revise their pre-employment policies.
The Washington Fair Chance Act prohibits employers from obtaining any information about an applicant's criminal record until after the employer determines that the applicant is qualified for the position. It also prohibits posting advertisements for job openings in a way that excludes people with criminal records from applying. Once the employer has initially determined the qualifications of the applicant, the law does not restrict the employer from inquiring into the applicants' criminal history.
The bill excludes a number of employers from its scope, including, for example, employers hiring individuals who will have unsupervised access to children under the age of 18 or vulnerable adults or persons; employers required by law to inquire into, consider or rely on information about an employment's criminal record for employment purposes; and law enforcement agencies.
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| Impact(s): Washington employers |
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| COURT OPINIONS |
| U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA: Judge grants motion for summary judgment in FCRA class action |
Summary: A California federal judge granted a nationwide retailer a quick victory in a proposed class action accusing the retailer of securing consumer reports about job applicants without proper consent, concluding that the claims filed by a former employee aren't within the FCRA's purview. The court tossed the former employee's litigation stemming from the employer securing a report confirming plaintiff's eligibility to work in the U.S. through the government's E-Verify program after she was hired. The plaintiff claimed the retailer violated the FCRA's prohibition on procuring consumer reports for employment purposes without proper disclosures and authorization, but the judge disagreed, citing the lack of evidence that the report in question was covered by the FCRA. "The undisputed facts underlying plaintiff's claims fall outside of the FCRA's coverage," the judge held, explaining that the statute applies to reports used to evaluate a consumer for employment, promotion, reassignment or retention as a worker. That is not the case here, as plaintiff was already an employee when the retailer requested the document. The judge added that a reasonable jury couldn't find that the retailer used the information in the report to evaluate whether to retain her.
The plaintiff's related claims for violations of California's Investigative Consumer Reporting Agencies Act and Consumer Credit Reporting Agencies Act were also dismissed.
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| Impact(s): FCRA compliance – for general legal review |
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| OTHER UPDATES |
| BOSTON, MASSACHUSETTS: Attorney General reaches agreements with employers identified as violating "Ban the Box" law |
Summary: Massachusetts Attorney General Maura Healey announced her office has reached agreements with four national employers, and has issued warning letters to 17 other Boston-area businesses found to be in violation of a state law prohibiting employers from asking about criminal record information on an initial job application.
Under the agreements, three of the companies are required to take steps to comply with the law and to pay $5,000. A fourth company, which recently filed for bankruptcy, has also agreed to take steps to comply with the law.
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| Impact(s): Massachusetts employers |
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| U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT: Uber drivers appeal a $7.5M settlement |
Summary: Uber drivers filed an appeal to the Ninth Circuit to challenge a $7.5 million settlement in California federal court.
The suit was originally brought against Uber in 2014 whereby several Uber drivers claimed that the company violated the FCRA by failing to provide proper disclosure or obtain proper authorization before conducting background checks. In June 2016, Uber made a tentative deal with the drivers, proposing a $7.5 million settlement while reserving its right to appeal a trial court's ruling that the company's arbitration agreement was unenforceable. Uber said that if it lost or withdrew the appeal or if it was found moot, it would raise the settlement amount to $9 million. If it won the appeal, the settlement would remain at $7.5 million. In 2016, a Ninth Circuit three-judge panel reversed a federal judge's decision that Uber's arbitration agreements were unenforceable. Uber then went on to request preliminary approval of the $7.5 million settlement.
In December 2017, hundreds of objectors to the settlement asked a California federal judge not to approve the "outrageously low" settlement amount because dozens of them are arbitrating their claims with Uber. They contend that Uber prohibited counsel from opting out represented clients and did not provide notice of the proposed settlement to counsel for represented objectors.
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| Impact(s): FCRA compliance – for general legal review |
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| EQUAL EMPLOYMENT OPPORTUNITY COMMISSION: Rail freight company agrees to pay $3.2M in settlement of an EEOC class action. |
Summary: A rail freight company has agreed to pay $3.2 million to a class of female job applicants and to stop using two tests of applicants' physical abilities the EEOC challenged as discriminatory, according to a document filed in West Virginia federal court. The consent decree ends the agency's allegations that the employer discriminated against female job applicants in violation of Title VII of the Civil Rights Act by analyzing their job fitness through its so-called IPCS Biodex test, which measures applicants' upper and lower-body strength, as well as a three-minute step test, which measures their aerobic fitness.
The EEOC had sued the employer alleging the testing had a disparate impact on female workers who had applied for more than three dozen job types, such as conductor and material handler. The agency claimed female applicants passed the IPCS test at "significantly lower rates" than men, disqualifying them for jobs – sometimes after the applicants had already been awarded positions.
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| Impact(s): EEOC compliance – for general legal review |
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