Legislative Alert

ENACTED LEGISLATION

DELAWARE: Delaware amends law relating to school bus, taxicab and limousine driver’s license endorsements

Summary: Delaware removed the reference to “Chapter 85 of Title 11” from the background check requirements for school bus and taxicab/limousine endorsements. This statute reference points to public school background check requirements and is not relevant to school bus or taxicab endorsement background check procedures.

Impact(s): Delaware employers

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INDIANA: Indiana amends law requiring criminal history checks for home health workers

Summary: Indiana will now require home health agencies or personal services agencies to obtain a national criminal history background check or an expanded criminal check for home health workers. The current law requires only a limited criminal background check unless certain circumstances warrant an expanded background check.

Impact(s): Indiana home health agencies and personal services agencies

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LOUISIANA: Louisiana amends law to allow healthcare providers to conduct fingerprint background checks

Summary: Louisiana amends law to allow various healthcare providers to use fingerprints to conduct mandated criminal history and security checks on nonlicensed persons and licensed ambulance personnel.

Impact(s): Louisiana healthcare providers

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NEW HAMPSHIRE: New Hampshire enacts law providing for immunity for healthcare providers who provide employment information regarding misconduct and competency about a healthcare worker to a prospective employer

Summary: The law states that: “A licensed health care provider facility shall, when acting in good faith, disclose employment information regarding misconduct and competency about a health care worker upon request of a prospective or current employer. The facility and its directors and employees who provide such information shall be immune from civil liability for providing the information or for any consequences that result from the disclosure of the information, unless it is alleged and proven that the information disclosed was false and disclosed with knowledge that such information was false.”

Impact(s): New Hampshire healthcare providers

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TENNESSEE: Tennessee enacts law regarding education program requirements for drug-free workplaces

Summary: Effective July 1, an employer is not required to provide annual education or awareness training for each employee if all existing employees have undergone such training at least once and have acknowledged annually in writing the existence of the employer’s drug-free workplace policy.

Impact(s): Tennessee employers

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NEW ORLEANS, LOUISIANA: City of New Orleans adopts ordinance to prohibit city contractors from conducting employment-related credit checks

Summary: The Equal Access to Employment Act, effective Dec. 23, 2016, makes it unlawful for city contractors to seek or use the consumer credit history of a current or prospective employee for any decision regarding the hiring or compensation of an employee or the terms, conditions or privileges of his or her employment. City contractors will also be required to post a notice regarding the applicability of the Equal Access to Employment Act in every workplace where current or prospective employees are under the city contractor's custody and control. Credit history may continue to be used if it is established as a bona fide occupational qualification for the position, such as positions that require a credit check by state or federal law or positions with certain fiduciary responsibilities.

Impact(s): New Orleans city contractors

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MONTGOMERY COUNTY, PENNSYLVANIA: Montgomery County votes to “Ban the Box” on county job applications

Summary: The question asking an applicant if they have any felony convictions will be removed from county employment applications. Criminal records will only be available to those reviewing applications after a conditional offer of employment is made.

Impact(s): Montgomery County public employers

COURT OPINIONS

U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA: Plaintiffs argue that court should reject SEPTA’s motion to dismiss lawsuit alleging FCRA and CHRIA violations

Summary: Plaintiffs filed a memorandum of law arguing that the court should reject SEPTA’s motion to dismiss a lawsuit alleging violations of the Fair Credit Reporting Act and Pennsylvania Criminal History Record Information Act. In response to SEPTA’s argument that the plaintiffs have failed to show any harm from the alleged failure to provide a standalone disclosure, the plaintiffs argue that “SEPTA's deprivations of plaintiffs' rights to privacy and information," are exactly the sort of harms Congress enacted the law to protect against.

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

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U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA: Court holds that coding an applicant as not recommended is not adverse action under the FCRA

Summary: Plaintiffs in a lawsuit against Family Dollar contended that Family Dollar violated the FCRA by taking adverse action against job applicants before providing the FCRA-required pre-adverse notice. The plaintiffs staked their claim on the assertion that the act of assigning an internal code to an applicant qualified as an adverse action under the FCRA. The court held that that internal coding did not amount to an adverse action against an applicant, but only the "formation of intent" to take an adverse action. It was simply one step in a process, and it may, in certain circumstances, trigger an FCRA notice. The court’s holding relied on the facts that are specific to this case.

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

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OTHER UPDATES

CONSUMER FINANCIAL PROTECTION BUREAU: CFPB files amicus brief in Spokeo v. Robbins

Summary: The Consumer Financial Protection Bureau (CFPB) filed an amicus curiae brief in support of the plaintiff, arguing that an inaccurate consumer report published about an individual constitutes concrete harm sufficient to satisfy the injury-in-fact requirement of Article III standing. The CFPB argues in its complaint that: “Consumer reports contain information that influences employers’ and other persons’ decisions about the individual, and the additional harms that may result from an inaccurate report like losing a job or a loan, could be difficult to prove or measure.”

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

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ILLINOIS: Illinois Department of Insurance requires independent third-party background investigation reports

Summary: The Illinois Department of Insurance issued a bulletin requiring all companies to obtain independent third-party background investigation/verification reports from nationally-recognized vendors for any required filing of biographical affidavits of officers and directors including in acquisitions. The vendor should submit the background investigation/verification reports directly to the Illinois Department of Insurance - Corporate Regulation Section. The list of NAIC approved vendors can be found at the following link: http://www.naic.org/documents/industry_ucaa_third_party.pdf

Companies licensed to do business in Illinois must notify the Illinois Department of Insurance within thirty days of the appointment or election of any new officers or directors and NAIC biographical affidavits must be submitted within that thirty day time frame.

Impact(s): Illinois insurance companies

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OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION: New OSHA reporting rule may require modification to employer post-incident drug testing policies

Summary: The new OSHA reporting rule does not ban drug testing of employees. However, the rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. To strike the appropriate balance, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.

Impact(s): All employers

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U.S. COAST GUARD: Coast Guard issues a Safety Advisory to reiterate random chemical testing requirements

Summary: The Coast Guard publishes a Marine Safety Advisory to restate and reemphasize the importance of a properly administered and applied random chemical testing program pursuant to 46 CFR Part 16. Marine Employers/Sponsoring Organizations (“ME/SO”) are required to conduct random chemical tests in a manner that is scientifically valid, spread evenly throughout the year, and achieves the goal of unpredictability as to when a test may occur. ME/SO must conduct selection at least quarterly, but again must achieve the goal of unpredictability. The current minimum annual percentage rate for random drug testing is 25 percent of covered crewmembers (effective Jan. 1, 2016 through Dec. 31, 2016).

Impact(s): Marine Employers/Sponsoring Organizations

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WASHINGTON: State of Washington issues letter to assisted living and skilled nursing facilities regarding owners or designee’s background or fingerprint check that show a non-disqualifying crime

Summary: The Washington Department of Social and Health Services’ recent “Dear Administrator” letter to assisted living and skilled nursing facilities states that if an owner or designee’s background check or fingerprint check shows a non-disqualifying crime, pending charges, or negative actions, he or she must either complete DSHS form 15-456 or complete a Character, Competence, and Suitability (CC&S) statement as outlined in applicable sections of the Washington Administrative Code (WAC) and make it available to the department upon request. Additionally, the CC&S should be kept with the owner or designee’s file for future inspections.

Impact(s): Washington assisted living and nursing facilities

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