ENACTED LEGISLATION
ILLINOIS: Human Rights Act amended
Summary: The Illinois Human Rights Act, which prohibits an employer from obtaining or using arrest records for employment purposes, has been amended to define "arrest record" to mean: (1) an arrest not leading to a conviction; (2) a juvenile record; or (3) criminal history record information ordered expunged, sealed, or impounded. The law takes effect on January 1, 2020.
Impact(s): Illinois employers
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PENNSYLVANIA: E-Verify mandatory for construction industry employers
Summary: Effective October 6, 2020, Pennsylvania's Construction Industry Employee Verification Act will require that all construction industry employers use the E-Verify system. This includes those who engage in the "erection, reconstruction, demolition, alteration, modification, custom fabrication, building, assembling, site preparation and repair work or maintenance work done on real property or premises under a contract, including work for a public body or paid for from public funds." It will also apply to construction staffing agencies. If the Department determines that an employee is not authorized to work in the United States, the employer will have 10 days after being notified by the Department, to terminate the employee. Penalties include placing the employer on a "probationary period" during which the employer must file quarterly reports with the Department for each new employee hired and/or face suspension of business licenses.
Impact(s): Pennsylvania construction industry employers
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UTAH: Medical Cannabis Act amended
Summary: On September 16, 2019, SB1002 – Utah Medical Cannabis Amendments, was passed and provided for several changes to the Utah Medical Cannabis Act. Notably, public employers must now treat an employee's use of medical cannabis in the same way that they would treat the employee's use of any prescribed controlled substance. The amendment does not apply to positions in which the use of cannabis could jeopardize federal funding, federal security clearance, or other federal background determination required for the position.
Impact(s): Utah public employers
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PENDING LEGISLATION
U.S. CONGRESS: Proposed bill to give skilled nursing facilities increased access to the federal background check database
Summary: Introduced on September 26, 2019, the Promote Responsible Oversight & Targeted Employee Background Check Transparency for Seniors Act (PROTECT) would increase a nursing home's access to the National Practitioner Data Bank (NPDB) for Medicare and Medicaid providers without undergoing a formal peer review process, as defined in 45 CFR § 60.3 of the NPDB, or paying a fee.
Impact(s): All skilled nursing facilities
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COURT OPINIONS
U.S. DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA: Motion to decertify class action in background check case granted
Summary: In January 2019, U.S. District Judge David O. Carter certified a class comprised of millions of job applicants who collectively alleged that a company had committed Fair Credit Reporting Act and California's Investigative Consumer Reporting Agency Act violations. The basis of the allegation was that the employer had not provided applicants with sufficient background check disclosure forms between June 2012 and March 2019.

Early on in the litigation process, the judge determined that the plaintiffs had sufficiently met the Article III standing bar in Spokeo v. Robins as established by the U.S. Supreme Court. As the case progressed, it would become the plaintiffs' burden to assert concrete injury and not simply a statutory violation. As the dispute proceeded to the summary judgment phase, the plaintiffs were charged with supplying more "specific facts" to establish standing as opposed to the base allegations that had previously been sustaining the class's status and case. The class decertification occurred as a result of the judge determining that the named plaintiffs failed to provide more concrete proof as was required. According to the judge's written order, the "named plaintiffs have failed to identify an injury stemming from this statutory violation that can suffice to support Article III standing."

Judge Carter referenced the Spokeo dispute in reaching his determination, which similarly involved alleged FCRA violations. The judge noted that the Supreme Court refrained from establishing standing based solely on procedural violations, requiring that a concrete injury must be proven as well. In both cases, the plaintiffs alleged only bare procedural violations.

The company argued for summary judgement in its favor by the district court; however, Judge Carter ruled that whether the plaintiffs could establish standing or certify as a class under the California law standards still remained to be addressed, ultimately concluding that, "the court will accordingly allow the state court, in the exercise of its proper parallel jurisdiction, to determine whether plaintiffs have standing under California law." As such, the dispute returns to Orange County Superior Court, where the case was originally filed in June 2017.

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