| ENACTED LEGISLATION |
| AIKEN CITY, SOUTH CAROLINA: Criminal history question removed from applications
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Summary: On July 13, 2020, the Aiken City Council voted unanimously to pass a "Ban the Box" resolution that would remove the check box on the initial employment application for city government jobs that ask about a job applicant's criminal history.
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Impact(s): Aiken City government agencies |
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| FLORIDA: New E-Verify law for public employers
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Summary: Effective January 1, 2021, SB 664 will require every "public employer, contractor, and subcontractor" to register with and use the E-Verify system to verify the work authorization status of all newly hired employees. A public employer, contractor, or subcontractor may not enter into a contract unless each party to the contract registers with and uses the E-Verify system.
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Impact(s): Florida public employers |
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| KENTUCKY: New online background check system in place for child care workers
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Summary: As of August 1, 2020, the Kentucky Department for Community Based Services (DCBS) has launched its new online system to process staff background checks for child care providers. The DCBS will no longer accept paper forms.
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Impact(s): Kentucky child care providers |
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| NEW HAMPSHIRE: Employers prohibited from inquiring about criminal history
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Summary: Effective September 22, 2020, HB 253 will prohibit employers from conducting a criminal background check or asking a prospective employee about his/her criminal history prior to interviewing the prospective employee, "unless the employer is required to screen applications for specific criminal convictions because it is prohibited from hiring those with such convictions under state or federal law." Such inquiries must be "directly implicated" by applicable state or federal law.
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Impact(s): New Hampshire employers |
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| NORTH CAROLINA: Executive Order prohibits state agencies from inquiring about criminal history
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Summary: Effective immediately, Executive Order 158, signed on August 18, 2020, prohibits state agencies from inquiring about a prospective employee's criminal history during the initial stages of the hiring process. A state agency is prohibited from considering expunged or pardoned convictions, charges or convictions that do not relate to the underlying employment matter, arrests not resulting in a conviction, or charges resulting in dismissal or ruled not guilty. A state agency cannot conduct background checks before an interview of the applicant and when conducting the check, an applicant must be given an opportunity to explain prior criminal history. Additionally, the Executive Order requires that the North Carolina Department of Administration conduct a study on the feasibility of implementing this policy for state contractors. State agencies must be in compliance by November 1, 2020.
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Impact(s): North Carolina state agencies |
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| SHELBY COUNTY, TENNESSEE: Ban the box ordinance has passed
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Summary: On July 28, 2020, the Shelby County Commission unanimously passed an ordinance to "ban the box" on job applications with the county government. The county will only be able to conduct criminal history searches after a contingent offer of employment is given to the applicant. After a contingent offer of employment, the employer shall only consider convictions that have a "substantial relationship" to potential job duties. A substantial relationship might exist where the conviction is related to responsibilities of the position sought, the position works with vulnerable populations, or the position is safety sensitive.
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Impact(s): Shelby County public employers |
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| PROPOSED LEGISLATION |
| U.S. HOUSE OF REPRESENTATIVES: Protecting Your Credit Act of 2020 passed
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Summary: The U.S. House of Representatives passed a new bill, H.R. 5332, "Protecting Your Credit Act of 2020," on June 29, 2020. This bill would amend provisions of the Fair Credit Reporting Act (FCRA) to "ensure that consumer reporting agencies are providing fair and accurate information in consumer reports."
Further, the bill would create a credit reporting "ombudsperson" to resolve errors by the CRAs and enhance oversight of consumer reporting agencies. It will task the Government Accountability Office with reporting on the feasibility of the CRAs using a mode of consumer identification other than social security numbers. The Act will also expand the FCRA's private right of action, allowing courts to award injunctive relief to compel a CRA to comply with credit report protections.
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Impact(s): FCRA compliance - for general legal review |
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| MONTGOMERY COUNTY, MD: Amendment introduced to Ban the Box law
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Summary: Bill 35-20 would expand the original ban the box legislation to include any employer with one or more full time employees and prohibit background checks until after a conditional job offer has been extended to a job applicant. Furthermore, inquiries into certain crimes would be prohibited.
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Impact(s): Montgomery County, MD employers |
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| OTHER |
| EQUAL EMPLOYMENT OPPORTUNITY COMMISSION: Guidance issued pertaining to employment and opioid addiction
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Summary: The first of two guidance documents, "Use of Codeine, Oxycodone, and Other Opioids: Information for Employees," provides answers to questions regarding Americans with Disabilities Act (ADA) protections pertaining to the legal use of opioid medications by employees or employees who have an opioid addiction history. In the second guidance document, "How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed," the EEOC identifies opioid addiction as a diagnosable condition, and therefore likely qualifies as an ADA disability.
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Impact(s): For general compliance review |
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| CONSUMER FINANCIAL PROTECTION BUREAU: Disputes and reinvestigations guidance during COVID-19
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Summary: The Compliance Aid, issued by the Consumer Financial Protection Bureau (CFPB), addresses enforcement of statutory deadlines for completing FCRA reinvestigations during COVID-19 shutdowns or limited services. It states that "consumer reporting agencies do not have an 'unlimited time beyond the statutory deadlines,' must conduct reinvestigations 'in a timely fashion,' and the CFPB expects consumer reporting agencies to make good faith efforts to investigate disputes as quickly as possible when they are impacted by COVID-19." It further states that "consumer reporting agencies are 'facing unique challenges' and the Compliance Aid reiterates that the CFPB will look at enforcement on a case-by-case basis to 'evaluate individually the efforts and circumstances of each furnisher and consumer reporting agency in determining if it made good faith efforts to investigate disputes as quickly as possible.'"
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Impact(s): FCRA compliance - for general legal review |
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| FEDERAL DEPOSIT INSURANCE CORPORATION: Section 19 rules revised related to individuals with certain minor criminal offenses
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Summary: Section 19 of the Federal Deposit Insurance Act (Section 19) “prohibits any person from participating in banking who has been convicted of a crime involving dishonesty, breach of trust, or money laundering, or who has entered a pretrial diversion or similar program in connection with the prosecution for such an offense, without first obtaining written consent from the FDIC.” As specifically outlined in the statement issued by FDIC Chairwoman, Jelena McWilliams, the following approved final rule revisions were incorporated into Section 19:
- "Excludes all offenses that have been expunged or sealed - rather than only certain types of expungements - from the scope of Section 19;
- Allows a person with two, rather than one, minor "de minimis" crimes on a criminal record to qualify for the de minimis exception;
- Eliminates the five-year waiting period following a first de minimis conviction and establishes a three-year waiting period following a second de minimis conviction (or 18 months for individuals whose misconduct occurred when they were 21 or younger);
- Increases the de minimis threshold for small-dollar, simple thefts from $500 to $1,000; and
- Expands the de minimis exception for crimes involving the use of fake identification to circumvent age-based restrictions from only alcohol-related crimes to any such crimes related to purchases, activities, or premises entry.
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Impact(s): FDIC compliance – for general legal review |
FDIC Press Release
Statement by FDIC Chairman
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| U.S. DEPARTMENT OF TRANSPORTATION: Guidance on enforcement of random drug testing during COVID-19
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Summary: On July 6, 2020 the U.S. Department of Transportation's Federal Motor Carrier Safety Administration (FMCSA) issued a Notice of Enforcement Discretion Determination. This Determination gives guidance on random drug and alcohol testing during the 2020 calendar year due to the coronavirus pandemic outbreak. Notably, the FMCSA "may exercise discretion to determine not to enforce the minimum annual percentage random testing rates for drugs and alcohol..."
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Impact(s): DOT FMCSA compliance - for general legal review |
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| U.S. DISTRICT COURT FOR THE DISTRICT OF DELAWARE: Lawsuit filed accusing large bank of background check discrimination
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Summary: Plaintiff alleges that Defendant, a large bank, violated the FCRA's pre-adverse action notification requirement by failing to provide him with a copy of the allegedly inaccurate background report before adverse action was taken. Plaintiff alleges that he was offered a position with the bank, contingent upon passing a criminal background check. The Plaintiff was later provided a letter stating that his background check report contained information that could affect his employment. The Plaintiff claims he disputed and appealed the inaccurate information on his report and it was corrected. However, although his corrected background check was sent to the employer, his job offer was not restored. Plaintiff contends that Defendant's failure to provide him with a copy of the report before taking an adverse employment action directly resulted in the loss of his job offer and violated the FCRA's pre-adverse action notification requirements.
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Impact(s): FCRA compliance - for general legal review |
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