ENACTED LEGISLATION |
ARKANSAS: Criminal background checks for licensed school personnel amended |
Summary: Effective July 24, 2019, Act 586 of HB 1544 will modify criminal background checks for licensed and classified school personnel in education by adding "sealed records" to the list of protected criminal records as long as said records do not involve the physical or sexual injury, mistreatment, or abuse of another.
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Impact(s): Arkansas educational employers |
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KANSAS CITY, MI: Ordinance passed to prohibit salary history inquiries |
Summary: Ordinance 190380 was unanimously passed on May 23, 2019 by the Kansas City, Missouri City Council, which will prohibit employers from inquiring about an applicant's salary history during the hiring process. This includes questions or statements to an applicant; questions or statements to an applicant's current or prior employer and searching publically available records for information regarding salary history. It will also prohibit screening applicants based on their salary history, relying on salary history when making an offer of employment and refusing to hire or retaliating against an applicant for refusing to disclose their salary history.
The ordinance's prohibition will not apply for internal transfers or promotions with a current employer, when applicant's voluntarily disclosure of salary history, when compensation is determined pursuant to a collective bargaining agreement, and for employees rehired within five years of termination if the employer already possesses salary information from the applicant's prior employment. The ordinance takes effect on October 31, 2019.
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Impact(s): Kansas City employers |
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MAINE: New disclosure rule on job applications |
Summary: Effective January 1, 2020, an employer will not be able to ask a prospective employee to disclose his or her social security number on an employment application or during the application process, except for the purpose of drug testing or a pre-employment background check. The employer can, however, request the social security number after hiring the employee.
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Impact(s): Maine employers |
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NEVADA: Law makes it unlawful for employers to take adverse employment actions based on a drug test that indicates presence of marijuana |
Summary: Effective January 1, 2020, Bill 132 will prohibit employers from testing potential applicants for marijuana. The bill specifically states that it is "unlawful for any employer in the State of Nevada to fail or refuse to hire a prospective employee because the employee submitted to a screening test and the results of the screening test indicate the presence of marijuana."
The law includes some exceptions for when it will not apply, including when the position involves the physical safety of others such as firefighter, emergency medical technician, motor vehicle operator, when a collective bargaining agreement is involved, and when the associated position is funded by a federal grant.
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Impact(s): Nevada employers |
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NEW MEXICO: New expungement law enacted |
Summary: House Bill 370, the Criminal Record Expungement Act, will permit individuals with certain arrest and convictions to petition the court for expungement, which will alleviate any requirement to disclose criminal history information on an employment application and/or throughout the employment relationship. The law takes effect on January 1, 2020.
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Impact(s): New Mexico employers |
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NEW YORK: School employees to be fingerprinted |
Summary: The Fingerprint Bill was enacted which will require all religious and private schools to run fingerprints and a background check on potential employees and for nonpublic and private elementary and secondary schools to submit fingerprints of prospective employees through the commissioner of education. It authorizes conditional appointment of employees pending the results of a criminal background check.
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Impact(s): New York schools |
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VIRGINIA: New law added for criminal background checks |
Summary: Act 620 has been added to HB 2746 to allow the Department of State Police to accept requests for background checks through the use of a Live Scan device by any agency or organization located within the Commonwealth of Virginia that is otherwise authorized to receive criminal history record information and utilizes a fingerprint background check as a condition for employment, licensure, certification or volunteer service. The Department shall only provide the criminal history record information to the extent authorized by state or federal law, rules and regulations and may deny any such agency or organization access to criminal history record information if the Department finds that such agency or organization has failed to comply with state or federal law, rules, or regulations.
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Impact(s): Virginia employers |
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PROPOSED LEGISLATION |
ILLINOIS: State passes bill to legalize recreational marijuana; prohibits discrimination in employment context based on "lawful use" of marijuana |
Summary: Passed on May 31, 2019 by the Illinois General Assembly, HB 1348 legalizes the possession, use and purchase of recreational marijuana by individuals 21 years of age and older. Gov. J.B. Pritzker has indicated that he will sign the bill and if so, the law will take effect on January 1, 2020.
The law continues to allow employers to prohibit the use of marijuana in the workplace and to allow employers to discipline/terminate employees who violate employment or workplace drug policies. However, the law also amends the Illinois Right to Privacy in the Workplace Act by defining "lawful products" to mean products that are legal under state law. As a result, under the Right to Privacy Act, Illinois employers are prohibited from discriminating against applicants and employees who use lawful products (i.e., marijuana) off the premises of the employer during nonworking and non-call hours.
The law includes some exceptions. Employers regulated by the U.S. Department of Transportation's drug and alcohol testing regulations are exempt from the provisions of the act. Likewise, employers are not bound by the act if it interferes with the employer's ability to comply with federal or state laws or could result in the loss of federal or state funding.
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Impact(s): Illinois employers |
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MISSOURI: School volunteers required to submit to criminal background check |
Summary: H.B. 604 proposes that volunteers at schools undergo mandatory background checks before working alone with students. Volunteers include "persons who regularly assist in the office or library, mentor or tutor students, coach or supervise a school-sponsored activity before or after school or chaperone students on an overnight trip." They "may only access student education records when necessary to assist the district and while supervised by staff members."
The bill also requires that a school district or charter school offering employment to a former employee must contact the department of elementary and secondary education to determine which school district or charter school previously employed the teacher, and shall require the district or charter school to disclose any violations of the published regulations of the board of education made by the employee related to sexual misconduct with a student and which was found to be valid by conducting a hearing pursuant to board policy.
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Impact(s): Missouri schools |
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NEW HAMPSHIRE: "Ban the box" legislation goes to the Senate |
Summary: The House recently approved a bill to "ban the box" on job applications which will prohibit an employer from asking about a potential employee's criminal history prior to conducting an interview or background check. It will also allow employers to ask about criminal history under certain other federal or state laws.
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Impact(s): New Hampshire employers |
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SUFFOLK COUNTY, NY: Law proposed to "Ban the Box" |
Summary: A proposed law entitled "A Local Law to Ensure a Second Chance in Suffolk County" was presented to the legislature on March 26, 2019. The law would prohibit employers from asking a potential employee about his or her past criminal involvement until after a conditional offer of employment has been extended. After extending a conditional offer of employment, an employer may then inquire about the applicant's arrest or conviction record.
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Impact(s): Suffolk County, NY employers |
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COURT OPINIONS |
U.S. COURT OF APPEALS FOR THE SECOND CIRCUIT: Circuit court interprets "consumer report" and "consumer reporting agency" under the FCRA |
Summary: The Second Circuit upheld the district court's decision granting summary judgment to a multinational information firm by defining what is required to qualify as a "consumer reporting agency" ("CRA") under the Fair Credit Reporting Act ("FCRA").
Plaintiff filed a class action against the firm alleging that it violated the FCRA. The parties decided to bifurcate the case limiting the first phase to discovery on the threshold issues of whether the firm is a CRA and whether the reports are "consumer reports" as defined by the FCRA. Defendant filed for summary judgment on these issues. The district court reached the conclusion that since the defendant took reasonable steps to insure that the report is not used for an FCRA-regulated purpose through words and actions, it does not qualify as a CRA under the FCRA.
Plaintiff then appealed the decision to the Second Circuit. The appeals court upheld the decision stating that the entity must intend to furnish a "consumer report" to qualify as a "consumer reporting agency" and because defendant took numerous measures to prevent its reports from being utilized as "consumer reports," no reasonably juror would conclude that defendant intended to furnish such reports as "consumer reports" under the FCRA.
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Impact(s): FCRA compliance – for general legal review |
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