Legislative Alert

ENACTED LEGISLATION

PUERTO RICO: New legislation will prohibit employers from using credit reports for hiring purposes

Summary: On October 8, 2019, Act No. 150 was signed into law prohibiting employers from obtaining credit reports of potential or current employees and further prohibits employers from adverse action based on the employee's credit report. It does, however, include exceptions including employees in management positions, positions in the Department of Justice or Judicial branch, public order officials and positions that have access to trade secrets, financial or personal information or cash or other goods subject to misappropriation totaling at least $10,000.00. When the exceptions apply, an employer must obtain written consent from the employee to be able to request their credit report. Penalties of up to $2,500.00 could be charged for violation of this Act.

Impact(s): All Puerto Rico employers

View source document

COURT OPINIONS

U.S.D.C. FOR THE NORTHERN DISTRICT OF ILLINOIS: Retailer reaches settlement with the EEOC in Years-Long Background Check Bias Suit

Summary: The EEOC and a large nationwide retailer recently resolved a six-year lawsuit arising under Title VII of the Civil Rights Act of 1964 (Title VII) for $6 million dollars and other programmatic relief.

In 2013, the EEOC filed suit against the retailer alleging that the company's use of criminal background checks disparately affected African-American applicants in violation of Title VII. The federal court never ruled against the company on the EEOC's claims, nor has the company admitted any liability.

The parties submitted a Consent Decree to the federal court in Illinois for approval. This Decree will be in effect for three years by which the retailer can continue to consider applicants' and employees' criminal conviction history for employment purposes only if it agrees not to violate anti-discrimination and anti-retaliation laws as well as the following:

retaining a criminal history consultant to evaluate its use of criminal history information in hiring decisions, and implementing recommendations made by the consultant by 180 days from the entry of the Decree at the latest;
until the consultant's recommendations are implemented, conducting internal individualized reviews for various misdemeanor crimes, using factors specified in the Decree; and
updating its reconsideration process for individuals whose conditional offer is rescinded because of criminal conviction history.

The retailer further agreed to submit detailed yearly reports to the EEOC. The company also agreed to conduct trainings on its background check processes and to update its policies. Additionally, it agreed to provide notices to conditional hires about its background check processes and that a criminal history is not an automatic bar to employment.

The terms of the class-wide settlement must still be approved by the federal court.

Impact(s): EEOC compliance — for general legal review

View source document
View source document

OTHER OPINIONS

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES: Oral Fluid Drug Testing Guidelines Issued

Summary: On Oct. 25, the U.S. Department of Health and Human Services (DHHS) published scientific and technical standards for oral fluid drug testing in federal workplace drug testing programs.

Taking effect on Jan. 1, 2020, the Mandatory Guidelines for Federal Workplace Drug Testing Programs Using Oral Fluid (OFMG) allows federal executive branch agencies to collect and test oral fluid specimens. OFMG also sets standards and technical requirements for oral fluid collection devices. Some agencies, such as the Department of Transportation, must follow the Mandatory Guidelines in developing drug-testing programs for their regulated industries.

Pre-employment, random, reasonable suspicion/cause, post-accident, return-to-duty and follow-up drug tests all represent situations in which a federal agency may collect oral fluid specimens. OFMG collection requirements include securing a specific volume of oral fluid and split-specimen collections. Additionally, collectors must be trained in accordance with the OFMG.

Impact(s): Drug screening compliance – for general legal review

View source document

This document and/or presentation is provided as a service to our customers. Its contents are designed solely for informational purposes, and should not be inferred or understood as legal advice or binding case law, nor shared with any third parties. Persons in need of legal assistance should seek the advice of competent legal counsel. Although care has been taken in preparation of these materials, we cannot guarantee the accuracy, currency or completeness of the information contained within it. Anyone using this information does so at his or her own risk.