Legislative Alert

ENACTED LEGISLATION
ARKANSAS: Criminal background checks for nursing licensure amended
Summary: Effective July 1, 2019, Act 626 will amend criminal background checks for nursing licensure to allow for programs that provide notification of an arrest subsequent to an initial background check that is conducted through available governmental systems. The new law also accounts for use of the federal Next General Identification system.
Impact(s): Arkansas employers
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MAINE: Salary history question prohibited
Summary: Effective Sept. 17, 2019, Gov. Janet Mills signed new legislation that will prohibit employers from inquiring into a potential employee's salary history until after an offer of employment is made. It also bars employers from making such inquiries directly to the candidate's current or former employer. Exceptions to the law include the following; (1) an employer may confirm a candidate's compensation history if the candidate voluntarily discloses it; and (2) it will not apply to an employer who "inquires about compensation history pursuant to any federal or state law that specifically requires the disclosure or verification of compensation history for employment purposes." Violations would result in a fine of between $100 and $500 per violation.
Impact(s): Maine employers
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MAINE: "Ban the Box" enacted for state government job applications
Summary: An Act to prohibit questions regarding criminal history on certain state employment application has been enacted. It states that "an application form for employment for apposition in State Government may not include any questions regarding an applicant's criminal history." The Act provides for an exception to the prohibition when, due to the nature and requirements of the position, a person who has a criminal history may be disqualified from eligibility, such as for a law enforcement officer, corrections officer, child protective or adult protective services caseworker or child development services worker position.
Impact(s): Maine state agencies
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MONTANA: Revision to fingerprinting and photographing of individuals for criminal acts
Summary: HB47, pertaining to photographs and fingerprints for criminals, has been updated as follows: An individual who is cited or arrested must be photographed and fingerprinted; A requirement to return fingerprint and photograph information to certain individuals has been eliminated; Revision of when a victim must be notified of a request for expungement of misdemeanor records; Revision of the crimes for which expungement may not be presumed, and; Amendment to sections 44-5-202 and 46-18-1101.
Impact(s): Montana employers
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NEW MEXICO: "Ban the Box" restrictions extended to private employment; medical marijuana use expanded
Summary: Effective June 14, 2019, the "Criminal Offender Employment Act" is revised to add a new provision prohibiting private employers from inquiring about a job applicant's history of an arrest or conviction on an initial employment application. The Lynn and Erin Compassionate Use Act will expand the types of conditions for which an individual can use medical marijuana. Employers will now be prohibited from taking any "adverse employment action against an applicant or an employee based on conduct allowed under" the Act, including declining to hire, terminating, or taking any other adverse action against an individual because he or she is using medical marijuana or received a recommendation for such use by a provider. Some exceptions include: If the employer would lose monetary or other licensing-related benefits under federal laws or regulations if it hires or employs individuals who use marijuana or test positive for marijuana. If the employee will work in a "safety-sensitive position"; To employees who use or are impaired by medical marijuana while working, during "hours of employment," or on premises. The act does not provide for what an employer can do if an applicant or employee tests positive for marijuana, however.
Impact(s): New Mexico employers
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NORTH DAKOTA: "Ban the Box" law enacted for public employers; contractors of state's IT department to undergo criminal background check
Summary: A new law, HB1282, has been enacted to prohibit public employers from inquiring into or considering the criminal record or criminal history of an application for public employment until the applicant has been selected for an interview. An amendment to HB1080 may require contract employees of the state's information technology department to undergo a criminal history background check as a condition of contracting. This includes any individuals employed by the contractor or subcontractor to perform work under the contract.
Impact(s): All North Dakota employers and State IT department contractors
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OKLAHOMA: New medical marijuana and smoking laws to go into effect
Summary: The Oklahoma Medical Marijuana and Patient Protection Act provides for a right to possess certain marijuana projects, relating to medical marijuana, provided the person holds a valid patient license or caregiver license. The law does not allow for use in the workplace but does provide certain protections from discrimination in employment. Employers may not discriminate in terms of employment solely on the results of a drug test showing positive for marijuana or its components, unless the employee (a) is not in possession of a valid license, (b) uses, possesses or is under the influence of a medical marijuana product while at work, or (c) is employed in a safety-sensitive position. Employers may take action against the holder of a medical marijuana license if the holder uses or possesses marijuana while in the holder’s place of employment or during the hours of employment. In addition, the use of medical marijuana is amended to specify that all smokable, vaporized, vapable and e-cigarette medical marijuana product inhaled through vaporization or smoked by a medical marijuana licensee are subject to the same restrictions for tobacco.
Impact(s): Oklahoma employers
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PENNSYLVANIA: Criminal Records to be sealed under Clean Slate Act
Summary: The Clean Slate Act was enacted in June 2018. It allows individuals who have been crime-free for 10 years to petition for a court order that prohibits disclosure of a criminal record. Also, the Act requires that counties enact an automated computer process that seals arrests that did not result in convictions, summary convictions, and eligible misdemeanor convictions if there are no convictions within ten years of the adjudication. The automatic sealing requirement goes into effect on June 28, 2019.
Impact(s): Pennsylvania employers
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SOUTH DAKOTA: Criminal background checks expanded
Summary: Act 1013 requires criminal background checks for certain vital records employees has been enacted. This law will affect individuals hired by the Department of Health, within the forensic chemistry unit of the State Public Health Laboratory or the Office of Vital Records. It will require applicants to submit to a criminal background investigation by means of fingerprint checks. The applicant may be hired on a temporary basis pending receipt of results of the criminal background investigation and the department may withdraw its offer of employment or terminate the temporary employment without notice if the report reveals a disqualifying record. In addition, HB 1029 has been amended to require that any applicant for work in a child care institution, including a group home, residential treatment center, intensive residential treatment center or shelter care facility shall be subject to a criminal background check.
Impact(s): South Dakota employers
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UTAH: New background check laws enacted
Summary: Effective May 14, 2019, the below laws were amended as follows: The Utah Labor Code is amended regarding a job applicant's expunged criminal history, to prohibit public employers from inquiring into an applicant's expunged criminal history, except in certain circumstances and to permit an applicant to answer a question related to an expunged criminal record as through the action underlying the expunged record never occurred. In addition, HB 375 was amended to exempt a "provider who provides care to a qualifying child through an educational institution that is regulated by the State Board of Education from submitting information to the Department of Health for a background check."
Impact(s): Utah employers educational institution employers
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VIRGINIA: Child welfare agencies to implement a process for receiving criminal history background checks
Summary: SB 1407, effective July 1, 2020, will require that the Department of Social Services implement a process for receiving criminal history background checks processed by local law-enforcement agencies pertaining to background checks at child welfare or daycare agencies.
Impact(s): Virginia child welfare and daycare agencies
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NEW YORK CITY: Council passed a first-of-its-kind bill prohibiting pre-employment marijuana drug testing
Summary: Legislation has been passed to prevent employers from testing prospective employees for marijuana usage prior to hiring. It specifically prohibits employers, labor organizations, employment agencies, or their agents from requiring prospective employees "to submit to testing for the presence of any tetrahydrocannabinols or marijuana in such prospective employee's system as a condition of employment." Exceptions include law enforcement, positions requiring the operation of heavy machinery and those tied to a federal or state contract or grant, lifeguards, and emergency responders. The law also would not apply when drug testing is required by certain laws or regulations or under federal contracts.
Impact(s): New York City employers
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NEW BERN, NORTH CAROLINA: Legislation to "Ban the Box" enacted
Summary: The City of New Bern, North Carolina enacted a resolution to "Ban the Box" on city job applications. The resolution will remove the "box" that inquires whether an applicant has been convicted of a criminal violation from job applications effective April 1, 2019. Criminal history information may be collected after a conditional offer of employment has been extended.
Impact(s): New Bern, North Carolina employers
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PROPOSED LEGISLATION

COLORADO: "Ban the Box" bill head to governor to become law

Summary: Bill HB19-1025 was passed by the Senate, which will prohibit employers from asking prospective employees about their criminal history. Exceptions could be made for jobs where criminal histories are not allowed, positions where the law requires criminal history record checks or the employer is trying to encourage the employment of people with criminal histories. The Bill passed the House on Feb. 28, 2019. If signed by the governor, it will become effective Sept. 1, 2019.

Impact(s): Colorado employers

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COURT OPINIONS
COURT OF APPEAL OF THE STATE OF CALIFORNIA: Appellate court affirms a Superior Court class action ruling on FCRA claim
Summary: The Second Appellate District Court affirmed a ruling by the Superior Court of Los Angeles that granted summary judgment to a large entertainment company in a class action that alleged willful violations of the Fair Credit Reporting Act. The three-judge panel stated that plaintiffs' claims that defendant willfully flouted various notice requirements contained in the FCRA related to consumer reports failed to show that a dispute existed over whether defendant's disclosure forms amounted to a willful violation of the statute's requirements. Plaintiffs alleged that their job offers were pulled after background checks were performed without the proper FCRA mandated stand-alone disclosures being provided to the plaintiffs advising them that they might be subject to background screenings. The suit also alleged that defendant turned away some candidates by having its contractor send them a "pre-adverse action" form letter that their job offers were revoked based on inaccurate information on their consumer reports without first providing a pre-adverse action notice. The court held that the defendant took a reasonable position in its pre-adverse action letters, stating that time was provided before any final action would be taken. The court also explained that the FCRA allows for statutory damages or punitive damages only if a violation was willful, as opposed to only actual damages if a violation was merely due to negligence. In this case, the court found that the defendant's actions were not willful.
Impact(s): FCRA compliance – for general legal review
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U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA: Settlement approved in two class actions for FCRA and wage and hour violations against large courier delivery company
Summary: A $3.15 million settlement was approved in two class actions brought against a large courier delivery company alleging that it violated the FCRA and wage and hour laws by failing to disclose that it would be conducting pre-employment background checks, and failed to give workers meal and rest breaks and improperly rounded employee time records. The settlement will be allotted to nearly 900 members of a California wage and hour class and the other half will go to over 20,000 members of a national FCRA class.
Impact(s): FCRA/wage and hour compliance – for general legal review
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OTHER UPDATES

U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA: Two class action cases alleging FCRA violations to be combined for settlement preparation

Summary: The plaintiffs in two cases, one in the U.S. District Court for the Western District of Washington and one in the U.S. District Court for the Northern District of Georgia will be combined for purposes of reaching a settlement in both cases. Each case alleges that a major restaurant chain did not provide job applicants with a copy of their consumer reports before taking adverse action against them based on information in the reports. In the first action, the plaintiff alleges he was denied employment due to felony and misdemeanor charges found on his record but contends that those charges were not his but that of his adoptive brother. The report was corrected but the employer never ‘reversed’ its adverse action. In the second case, the plaintiff already worked for the employer and was approved for a position at another of the employer’s stores when the plaintiff’s background report found he was convicted twice of domestic violence in Minnesota. The plaintiff contended that he never lived in Minnesota but the employer told him he was barred from working for them due to his criminal background. Again, the plaintiff alleges that the employer failed to provide a copy of the consumer report and a written description of rights at least five days before the adverse action was taken in violation of the FCRA. Both cases have been consolidated in Georgia in order to attempt settlement.

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

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