ENACTED LEGISLATION |
MARYLAND: "Ban the Box" enacted |
Summary: Effective January 30, 2020, SB839 will prohibit employers from inquiring about an applicant's criminal record prior to the applicant's first in-person interview. It will not apply to employer's who provide "programs, services or direct care to minors or to vulnerable adults," or those governed by federal or state law.
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Impact(s): Maryland employers |
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PENNSYLVANIA: Background checks for employees working with children must be completed prior to starting the job |
Summary: Effective September 30, 2019, The Pennsylvania General Assembly amended the state Child Protective Services Law to prevent employers from hiring new employees on a conditional basis while awaiting results of a background check. The new statute specifically states that "employers, administrators, supervisors or other persons responsible for employment decisions may not employ applicants on a provisional basis." Exemptions for provisional employees for a single period, not to exceed 45 days, may be granted upon the employer's request.
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Impact(s): Pennsylvania child care employers |
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COLUMBIA, SOUTH CAROLINA: Recent amendment to the criminal and salary history ordinance |
Summary: The Conviction and Wage History Prohibition in City Employment and by City Contractors and City Vendors provision of the city code that became effective on August 6, 2019, has been amended at the request of a group of private employers. As originally written, the definition of "Employer" was defined to include "private employers". The amendment now reads that "Employer" is defined to include only "the City of Columbia as a municipal corporation" and not private employers. Private employers who have no contracts with the City of Columbia are excluded from the ordinance.
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Impact(s): All Columbia, South Carolina employers |
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PROPOSED LEGISLATION |
DES MOINES IOWA: "Ban the Box" law is being challenged |
Summary: Senate Study Bill 3034 is being proposed to make "ban the box" laws unenforceable. If passed, the law will bar cities, counties and other local governments from adopting "ban the box" ordinances.
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Impact(s): Des Moines, Iowa government agencies |
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COURT OPINIONS |
APPELLATE COURT OF ILLINOIS: Lower court's summary judgment decision affirmed in an FCRA violation claim |
Summary: Defendant, a large electric utility company, rejected plaintiff job applicant for a position as a customer service representative based on the results of the plaintiff's credit history check. Plaintiff filed a class action lawsuit alleging that this constituted a violation of the Illinois Credit Privacy Act. The Act prohibits employers from arriving at employment decisions based on an individual's credit report or credit history. Additionally, the Act disallows employers from obtaining an applicant's or employee’s credit report or from inquiring about the person's credit history, unless the employer is seeking to establish that a position or group has a "bona fide occupational requirement" that an applicant/employee has a "satisfactory credit history." The employer must then show that certain circumstances exist.
In its motion for summary judgment, defendant argued that since the position "involves access to personal or confidential information" of the employer's customers, a satisfactory credit history was a bona fide occupational requirement. It was the contention of the defendant that the position in question required regular access to personal/confidential information such as Social Security numbers, dates of birth and credit card information. The defendant's motion was granted by the lower court.
The plaintiff appealed, arguing that the position did not require actual "access" to information and that the information in question was not "personal or confidential." The plaintiff's stance was that customer service representatives are merely "conduits" between the customer and other employees as it relates to the information at issue. The Act defines "personal or confidential information" as, "sensitive information that a customer or client of the employing organization gives explicit authorization for the organization to obtain, process, and keep; that the employer entrusts only to managers and a select few employees; or that is stored in secure repositories not accessible by the public or low-level employees."
The appellate court rejected the plaintiff's argument, concluding that to be classified as a "low-level employee," the individual would need to possess a similar level of access to the information in question as to the general public. The court determined that the position being pursued by the plaintiff was accompanied by a need and ability to obtain information much greater than that of the general public. The court also rejected the plaintiff's contention regarding the "conduit" status of a customer service representative, finding that "after initially inputting the information into [the system], [they] continue throughout their employment to have the ability to view at least partial Social Security numbers, driver's license numbers, bank account numbers and credit card numbers, in addition to customers' names, address histories, dates of birth, and other identifying information" and that they "use this customer information routinely to assist customers as part of their job duties." Ultimately, the appellate court affirmed the lower court’s granting of summary judgment.
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Impact(s): Illinois employers |
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U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT: District court decision dismissing plaintiff's FCRA claim reversed and remanded |
Summary: Plaintiff filed a lawsuit against defendant global technology company for violation of the Fair Credit Reporting Act when defendant obtained her credit report without authorization. The court found that plaintiff failed to allege a concrete injury sufficient to satisfy Article III's standing requirement and dismissed her claim. On appeal to the Ninth Circuit, the court found that the FCRA "'protects the consumer's substantive privacy interest' by prohibiting third parties from 'obtaining a credit report for a purpose not otherwise authorized.'" It further stated that "a plaintiff 'has standing to vindicate her right to privacy under the FCRA when a third-party obtains her credit report without a purpose authorized by the statute, regardless whether the credit report is published or otherwise used by that third-party.'" The Ninth Circuit found that the plaintiff's allegation was sufficient to establish Article III standing and reversed and remanded the district court's dismissal of the plaintiff's FCRA claim.
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Impact(s): FCRA compliance – for general legal review |
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U.S. COURT OF APPEALS FOR THE THIRD CIRCUIT: Panel reverses order blocking salary inquiry provision for Philadelphia employers |
Summary: On February 6, 2020, a panel of three judges reversed a district court decision that blocked the salary history inquiry provision of the city's equal pay reform from taking effect. Furthermore, the panel affirmed the district court's decision to not block the law's "reliance" provision which prohibited employers from using a candidate’s wage history to establish a new salary.
In April 2018, Eastern District of Pennsylvania Judge Mitchell Goldberg granted a preliminary injunction on the salary inquiry ban provision. In defending this decision, Judge Goldberg stated that the city had not displayed that preventing employers from making inquiries about salary history would support narrowing the wage gap.
In advocating for the block, The Chamber of Commerce of Greater Philadelphia had contested that the law was in violation of the U.S. Constitution as it restricted employers as to what they can say when vetting applicants. The panel determined that the City's rationale behind the restriction was sufficient to justify the law in their reversal decision.
"The city enacted the inquiry provision in an attempt to address this persistent problem and the record is clearly sufficient to withstand this First Amendment challenge to it," stated the panel. Per this conclusion, the panel instructed the lower court to deny the Chamber's injunction bid.
In its reversal, the panel determined that the city possessed sufficient proof that banning salary history questions would assist both women and minorities. This proof included expert testimony from a leading labor economist who demonstrated an academic consensus that women are compensated less than their white, male counterparts and that these discrepancies occur even when evaluating certain criteria such as education and experience. The panel justified the decision further stating that the U.S. Supreme Court had previously "upheld similar restrictions based on much less evidence."
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Impact(s): Philadelphia employers |
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U.S.D.C. EASTERN DISTRICT OF PENNSYLVANIA: Employer found not in violation of the Criminal History Record Information Act |
Summary: Plaintiff job applicant filed a claim for violation of the Pennsylvania's Criminal History Record Information Act and Title VII rights, alleging that the employer rescinded a job offer based on information it found via an internet search of the applicant's name. The information that was found by the employer included lawsuits filed against a former employer by the applicant and a misdemeanor charge. CHRI describes criminal history information as information that is "collected by criminal justice agencies" and excludes information that collected by "noncriminal justice agencies." In this case, the court found that, although the applicant did contend that the employer acquired information without his permission, because the applicant did not state in his lawsuit how the employer came to acquire the information (through an internet search and not a "criminal justice agency"), the CHRI could not protect the applicant from an employer's determination not to hire the applicant using information acquired by means other than through a criminal justice agency. The court further found that applicant failed to prove a violation of his Title VII rights, because the applicant failed to file his claims within the 300-day limitations period. The applicant's argument that he had no way of knowing the reason for the employer's rescinding of the job offer and that the employer did not voluntarily share that information with him failed.
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Impact(s): Philadelphia employers |
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SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA: Settlement Reached In Walgreens Consumer Protection Case |
Summary: This action was brought by the district attorneys after discovering that Walgreens had employed someone as a pharmacist who was not licensed by the Board of Pharmacy. The individual, Kim Thien Le, worked at multiple pharmacy locations throughout California's bay area for approximately ten years. Allegations against Walgreens claim that Ms. Le performed at least one required step in the pharmacist process as it related to more than 745,000 prescriptions. Approximately 100,000 of these prescriptions were written for controlled substances. The complaint further alleges that Ms. Le was not properly vetted when Walgreens promoted her to positions that required a license and that the company failed to ensure that their internal systems were robust enough to prevent a situation such as this.
As a result of the civil judgement outcome, Walgreens was instructed to:
- implement a verification program, posting proof of licensure;
- conduct annual audits;
- submit an annual compliance report; and
- pay approximately $7.5 million in penalties, costs and remedial payments.
Ms. Le's employment ended in 2017 and she has since been criminally charged with false personation and related felonies by the California Attorney General's Office.
Companies operating in industries that involve positions for which licensure is required are encouraged to review not only their processes and policies for vetting employees and applicants but also the internal systems being utilized to support the vetting of an individual's licensure status. Furthermore, employers in these spaces beholden to these requirements should allocate the resources necessary to review the procedures and internal workflows in place that monitor the currency and expiration of their employees' licenses.
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Impact(s): California employers |
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OTHER LEGISLATION |
U.S. CONGRESS: Comprehensive Credit Act of 2020 is proposed in the House |
Summary: H.R 3621, the Comprehensive Credit Act of 2020, is being reviewed by the House of Representatives. The legislation, if passed, would be made up of several Acts that would provide for the following:
- The Clarity in Credit Score Formation Act would require the Consumer Financial Protection Bureau (CFPB) to regulate credit-score formulas;
- The Improving Credit Reporting for All Consumers Act would change the process for consumers to dispute items on their credit reports and require agencies to investigate within 30 days.
- The Restricting Credit Checks for Employment Decisions Act would block the use of credit scores in most employment situations unless required by law.
- The Student Borrower Credit Improvement Act would exclude negative information about private education loans when the borrowers have made payments in nine of 10 consecutive months.
- The Restoring Unfairly Impaired Credit and Protecting Consumers Act would take off several years of negative events on credit reports including some medical-related debt and negative data that resulted from fraudulent or deceptive mortgages.
- The Free Credit Scores for Consumers Act would require national credit bureaus to let consumers see their FICO scores annually and discard scores older than two years.
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Impact(s): FCRA regulations |
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U.S. SUPREME COURT: Constitutional challenge made to the Consumer Financial Protection Bureau's "for-cause" provision |
Summary: Plaintiff job applicant filed a claim for violation of the Pennsylvania's Criminal History Record Information Act and Title VII rights, alleging that the employer rescinded a job offer based on information it found via an internet search of the applicant's name. The information that was found by the employer included lawsuits filed against a former employer by the applicant and a misdemeanor charge. CHRI describes criminal history information as information that is "collected by criminal justice agencies" and excludes information that collected by "noncriminal justice agencies." In this case, the court found that, although the applicant did contend that the employer acquired information without his permission, because the applicant did not state in his lawsuit how the employer came to acquire the information (through an internet search and not a "criminal justice agency"), the CHRI could not protect the applicant from an employer's determination not to hire the applicant using information acquired by means other than through a criminal justice agency. The court further found that applicant failed to prove a violation of his Title VII rights, because the applicant failed to file his claims within the 300-day limitations period. The applicant's argument that he had no way of knowing the reason for the employer's rescinding of the job offer and that the employer did not voluntarily share that information with him failed.
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Impact(s): Consumer Financial Protection Bureau |
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U.S. DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA: Class action filed for alleged FCRA violations |
Summary: Plaintiff filed suit in the Middle District of Florida, claiming that defendant airport retailer did not alert her in a stand-alone disclosure when the company conducted her background check as part of her application process. Additionally, the suit alleges that violations were also committed when the company failed to supply the plaintiff with a copy of her report before making a decision about her employment with the company.
According to the suit, plaintiff was offered a position contingent on passing a background check. Plaintiff claimed that the paperwork she completed included a disclosure authorizing defendant to pull a consumer report but not in a stand-alone format, as required by the FCRA. A few weeks later, the plaintiff received an email from the company stating that her job offer was on hold as a result of the contents included in her returned background check report. The suit claims that while the plaintiff was informed of her right to dispute the accuracy of the information returned in the report by contacting the consumer reporting agency, the email did not include the report itself.
The suit further alleges that defendant directed plaintiff to contact Freeh Group International Solutions, LLC (a risk management firm) who informed her that she had no right to dispute the report. Upon explaining the response, defendant informed plaintiff that she would need to contact TransUnion for a copy of the report. Plaintiff claims she was stymied in her efforts to dispute the reported information and ultimately had her job offer revoked. She is seeking to organize a nationwide class of job applicants.
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Impact(s): FCRA compliance – for general legal review |
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