Legislative Alert

ENACTED LEGISLATION

CALIFORNIA: Background check law amended

Summary: Private and public employers (private individuals, corporations and public agencies) are generally prohibited from asking job applicants to disclose information concerning participation in a pre-trial or post-trial diversion program or about a conviction that has been judicially dismissed or ordered sealed, with certain exceptions.

SB 1412, effective Jan. 1, 2019, is amended to provide that a private or public employer will not be prohibited from asking about or seeking information regarding a particular conviction of the applicant if, pursuant to federal law, federal regulation or state law, (1) the employer is required to obtain information regarding the particular conviction of the applicant, regardless of whether the conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation, (2) the applicant would be required to possess or use a firearm in the course of his or her employment, (3) an individual with that particular conviction is prohibited by law from holding the position sought, regardless of whether the conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation, or (4) the employer is prohibited by law from hiring an applicant who has that particular conviction, regardless of whether the conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation.

Also, the law would not prohibit an employer required by state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history from complying with those requirements or prohibit an employer from seeking or receiving an applicant's criminal history report obtained under procedures provided under federal, state, or local law (Ch. 987 (S. 1412), L. 2018, enacted Sep. 30, 2018, and effective Jan. 1, 2019).

Impact(s): California employers

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LOUISIANA: City of New Orleans votes to "Ban the Box" on contractor employment applications

Summary: Effective March 1, 2019, the New Orleans City Council unanimously passed an ordinance that prevents city contractors from asking about potential hires' criminal history on job applications, a measure that extends an existing City Hall policy to people who want to work under employers with city contracts, cooperative endeavor grants or grant funding. The measure does not prevent employers from performing background checks later in the application process.

Impact(s): New Orleans city contractors

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ONTARIO, CANADA: Exemptions from Bill 113 requirements granted for background screening

Summary: The National Association of Professional Background Screeners (NAPBS) reports that the Ontario government has confirmed that it has granted an exemption to Section 12 of Bill 113 ("The Police Records Checks Reform Act, 2015"). This exemption covers third party agents, like background screening firms, and eliminates the need for sharing of the criminal record result with the applicant and obtaining consent from the applicant before sharing the information with a designated end user.

Impact(s): Employers conducting searches in Ontario, Canada

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OTHER UPDATES

FAIR CREDIT REPORTING ACT: Proposed class seeks certification for alleged violation of FCRA's stand-alone disclosure requirement

Summary: A proposed class of five million applicants and employees of a large national retailer have requested certification in a suit accusing the retailer of failing to provide applicants and employees with a stand-alone disclosure prior to obtaining background reports. The proposed class alleges that the retailer presented applicants with multiple forms, containing similar disclosure language, unlawful information, and irreconcilably inconsistent provisions likely to cause confusion. The applicants also bring similar claims under California's Investigate Consumer Reporting Agencies Act. The proposed class would consist of all current and former applicants whom the retailer ran a background check on from June 2012 through the end of the suit.

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

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OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION: OSHA clarifies position on workplace safety incentive programs and post-incident drug testing

Summary: On Oct. 11, 2018, OSHA issued a memorandum to clarify its position that 29 C.F.R. § 1904.35(b)(1)(iv) does not prohibit workplace safety incentive programs or post-incident drug testing. That regulation prohibits employers from discharging or discriminating against an employee for reporting a work-related injury or illness.

OSHA previously published commentary stating that employers could not use "drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses." Employees were limited to drug testing when there was a "reasonable possibility" that drugs or alcohol contributed to the accident or injury.

However, in its Oct. 11, 2018 memorandum, OSHA states that 29 C.F.R. §1904.35()(1) (iv) does not prohibit workplace safety incentive programs or post-incident drug testing and that most instances of workplace drug testing are permissible." Examples of permissible drug testing include:

Random drug testing.
Drug testing unrelated to the reporting of a work-related injury or illness.
Drug testing under a state workers' compensation law.
Drug testing under other federal law, such as a U.S. Department of Transportation rule.
Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

Impact(s): All employers

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