| ENACTED LEGISLATION |
| ALASKA: Act will add new background check provisions for state workers |
| Summary: HB216, effective July 1, 2018, requires current or prospective state employees or contractors who have access to federal tax information to submit to and pass background investigations, including a state and national criminal history record through the submission of fingerprints to the FBI. |
| Impact(s): Alaska state employers and contractors |
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| MICHIGAN: Governor signs directive to “Ban the Box” on state agency job applications |
| Summary: Commencing on Oct. 1, 2018, Gov. Rick Snyder has directed state agencies and departments to not include a question about an applicant’s criminal history or convictions in a job application or job posting. It does not apply to an application or posting for a specific position if a state or federal law prohibits hiring candidates with criminal histories for the specific position. It does not, however, prohibit the state agency or department from conducting a background check and criminal history inquiry later in the hiring process.
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| Impact(s): Michigan state agencies |
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| PROPOSED LEGISLATION |
| ILLINOIS: Governor issues second veto of bill that prohibits employers from obtaining salary history information |
| Summary: HB 4163 was passed by both the Illinois Senate and House on July 9, 2018. The bill would prohibit an employer from screening job applicants based on their wage or salary history, requiring that an applicant’s prior wages satisfy minimum or maximum criteria and requesting or requiring as a condition of being interviewed or as a condition of continuing to be considered for an offer of employment that an applicant disclose prior wages or salary. It also prohibits an employer from seeking the salary, including benefits or other compensation or salary history, of a job applicant from any current or former employer with some exceptions. On Sept. 12, Gov. Bruce Rauner returned the bill with some recommendations for change. He stated that the bill is similar to Bill 2462 which he vetoed in August 2017 and made the same recommendations for change that he made then, including exceptions for when the individual is already an employee and when the individual has voluntarily disclosed such information. |
| Impact(s): Illinois employers |
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| U.S CONGRESS: Legislation proposed to end cannabis testing for federal employees |
| Summary: Bill H.R. 6589 was submitted to the legislature on July 26, 2018, and would remove limitations on Federal employment for an individual legally using marijuana under the law of the State in which the individual resides.
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| Impact(s): All employers |
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| COURT OPINIONS |
| U.S. COURT OF APPEALS FOR THE FIFTH CIRCUIT: EEOC files appeal of a Texas District Court’s decision in background check policy suit |
| Summary: In 2013, Texas sued the EEOC in the District Court of Texas, declaring it had the right to bar felons completely from certain jobs and for an injunction keeping the EEOC from issuing right-to-sue letters based on the EEOC’s guidance or enforcing it. The state court granted Texas partial summary judgment on enforcement after finding that the EEOC should have allowed public comments on the guidance but refused to declare that the state’s hiring practices regarding felons were appropriate or block the right-to-sue letters. On Sept. 13, 2018, the EEOC asked the Fifth Circuit to overturn the lower court’s ruling and reinstate in Texas the enforcement of an EEOC’s guidance, urging employers to limit their use of criminal background checks in hiring, asserting that the state didn’t have standing to challenge the matter under Article III and that the guidance wasn’t a final agency action that could be challenged in court. Texas had alleged in its suit that the guidance essentially forced it to disregard state law and rewrite its own hiring laws and practices. The EEOC stated in oral argument that the state’s pleadings didn’t establish a concrete injury as required for Article III. It further stated that it didn’t have the authority to issue substantive rules under Title VII and the guidance wasn’t binding on the state of Texas and that removing the guidance wouldn’t resolve the harm it allegedly caused because Title VII still forbade racial discrimination in hiring and supported disparate impact claims. |
| Impact(s): All employers |
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| U.S. DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA: Summary judgment granted in debate over FCRA compliance |
| Summary: A job applicant brought an FCRA class action against his employer alleging it violated the FCRA by providing a disclosure with an application package containing six other documents. Plaintiff argued that this was not a clear and conspicuous “stand-alone” disclosure that would satisfy FCRA’s requirement. He also argued that the employer’s FCRA authorization was “buried” at the end of its job application and thus did not comply with FCRA. The employer argued its disclosure form was FCRA compliant because the form was its own single-page document and that there is no stand-alone document requirement at all for FCRA authorizations. The court agreed with the employer and granted summary judgment in its favor, stating there was nothing in the statutory language of FCRA that requires an “FCRA disclosure not only in a separate document, but also separate in time from any other documents,” and that the FCRA’s authorization provision “sets forth no requirements about the form in which the authorization must be presented.” Plaintiff has filed a notice of appeal with the Ninth Circuit.
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| Impact(s): FCRA compliance – for general legal review |
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| U.S. DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY: Court dismisses FCRA action based on mere technical statutory violation |
Summary: Plaintiff brought a putative FCRA class action against a trucking company alleging that after applying for employment, she received a letter informing her that she was rejected based on information contained in a Drive-A-Check Report, a common consumer report used in the commercial trucking industry, showing that she had three accidents as a commercial trucker. Plaintiff alleged that this letter is not FCRA compliant, stating that the employer violated § 1681b by failing to provide a “stand-alone” disclosure before the report was procured. She also claimed that the employer did not provide her with information on her rights regarding the report including the address and telephone number of the reporting agency, notification that the report provider did not make the adverse decision or that she could obtain a free copy of the report and file a dispute.
The employer moved to dismiss the claims arguing that the complaint did not allege that the information was not provided to the plaintiff only that it was not provided in the correct format which is a non-material violation. It also moved to dismiss the case for lack of standing under Spokeo. The court rejected the first argument and ruled that, because the statute requires the information and other disclosures to be provided in a specific format, the plaintiff could state a technical claim for failure to provide the information as required. However, it granted the motion for lack of standing because plaintiff failed to allege that she was injured or confused as a result of the timing or content of the disclosures provided to her or that the employer’s failure to hire her resulted from the alleged FCRA violation.
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| Impact(s): FCRA compliance – for general legal review |
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| OTHER UPDATES |
| U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK: Sports arena and major food service provider settle background check suit |
Summary: A plaintiff in a proposed class action suit that was brought against a New York sports arena and major food service provider requested that the court approve a settlement agreement. The proposed class action was brought by job applicants alleging one of the arena’s food service providers used a discriminatory criminal history screening policy to deny positions to qualified applicants. The settlement provides for the vendor to hire workers it had denied and to revise its background check policy with the help of a psychology expert. It also provides direct relief to three tiers of proposed class members.
- Those who still seek employment will be hired for positions to which they initially applied if they qualify under the revised background check policy and with awarding $1,950 to all class members whether they are hired or not.
- Those class members who no longer seek employment with the company can receive $2,350.
- Finally, those who do not file a claim in time or who are disqualified under the revised background check policy will receive $250 for statutory damages under the FCRA.
In addition, the settlement provides up to $5,000 in funding for Getting Out and Staying Out, an NYC nonprofit that helps people with criminal histories get back into the workforce.
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| Impact(s): Background screening compliance – for general legal review |
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| EQUAL EMPLOYMENT OPPORTUNITY COMMISSION: Large furniture retailer reaches agreement with EEOC to revise its background check policies |
| Summary: The EEOC reached an agreement to resolve allegations of race discrimination raised by an unsuccessful black applicant whose offer of employment was rescinded as a result of the employer’s background check policies. The retailer has agreed to make changes to its hiring and screening policies by removing any blanket exclusions for criminal conviction from its screening policies and affording all applicants an opportunity for an individualized assessment. It also has agreed to reform its employment application by removing criminal conviction questions and postponing inquiries about criminal history until later in the hiring process. Furthermore, the retailer will provide training on its revised criminal background procedures and will require essential employees to take mandatory implicit bias training and annual refresher training. |
| Impact(s): EEOC compliance – for general legal review |
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| FAIR CREDIT REPORTING ACT: Paramedics group accused of FCRA violations |
| Summary: An employee of a paramedics group filed a class action lawsuit alleging violations of the FCRA and invasion of privacy, stating that the employer procured consumer reports that contained private and confidential information about him without making proper disclosure by inserting extraneous provisions into the forms purporting to grant the employer authority to obtain and use consumer report information for employment purposes. He alleges that the employer “knowingly and recklessly” disregarded case law and regulatory guidance and willfully violated the FCRA by procuring consumer reports on employees without complying with the FCRA’s disclosure and authorization requirements. |
| Impact(s): FCRA compliance – for general legal review |
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