| ENACTED LEGISLATION |
| CONNECTICUT: Connecticut school districts subject to new requirements for employee background checks |
| Summary: Previously, Connecticut General Statute § 10-222c merely required school districts to make a documented good-faith effort to contact previous employers of applicants to obtain “information and recommendations which may be relevant to the [applicant’s] fitness for employment” before hiring that applicant. As of July 1, 2016, local and regional boards of education, charter school governing councils and interdistrict magnet school operators (collectively, “school districts”) are required to implement more extensive background check procedures when hiring certain applicants including requesting specific information from an applicant, from the applicant’s prior employers and from the State Department of Education before hiring an applicant for a permanent position involving direct student contact. The new procedures further require that current and former employers respond to requests for information pursuant to the statute within a specified time frame. |
| Impact(s): Connecticut local and regional boards of education, charter school governing councils and interdistrict magnet school operators |
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| ILLINOIS: Minor drug offenses are no longer an automatic bar to employment in Illinois schools |
| Summary: Effective July 29, 2016, House Bill 4360 revised Illinois law to eliminate what was otherwise considered a lifetime ban on employment for those individuals seeking work in schools who had been convicted of certain non-violent drug offenses. Specifically, the revised law allows individuals convicted of certain drug offenses to regain the right to apply for jobs in Illinois schools after a period of seven years following the end of the sentence for the offense. |
| Impact(s): Illinois schools |
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| MASSACHUSETTS: Massachusetts enacts law prohibiting employers from screening or inquiring about an applicant’s past salary history |
| Summary: The Massachusetts law, which was enacted on August 1, 2016, makes it unlawful to "screen job applicants based on their wage, including benefits or other compensation or salary histories” or “request or require 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 history.” |
| Impact(s): Massachusetts employers |
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| OHIO: Ohio legalizes medical marijuana and provides language protecting employers |
| Summary: The law is effective September 8, 2016, and specifically states that employers still have the right to have a zero-tolerance policy regarding the use of medical marijuana in the workplace and employers’ rights to hire and fire employees are unaffected by the legalization of medical marijuana. |
| Impact(s): Ohio employers |
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| ALBANY COUNTY, NEW YORK: Albany County, New York removes criminal history question from county employment applications |
Impact(s): Albany County public employers
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| PROPOSED LEGISLATION |
| CALIFORNIA: California amends proposed wage discrimination law and removes prohibition against seeking salary history information |
| Summary: California recently amended a proposed wage discrimination bill to remove the prohibition against employers seeking salary history information. |
| Impact(s): California employers |
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| CALIFORNIA: Recreational marijuana placed on California’s November ballot |
| Summary: The proposed act explicitly states that nothing in it shall be construed or interpreted to amend, repeal, affect, restrict or preempt the rights and obligations of public and private employers to maintain a drug and alcohol free workplace. |
| Impact(s): California employers |
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| COURT OPINIONS |
| U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA: Court rules that medical marijuana user fired after positive drug test can advance suit with implied contract and defamation claims |
| Summary: A federal court in California ruled that a registered medical marijuana cardholder who was terminated from his department store job after a positive drug test can take his breach of an implied contract and covenant of good faith and fair dealing claim to trial. The court held that a reasonable jury could conclude from the employer’s policies and the employee’s testimony that they agreed—subsequent to his acknowledgment of the at-will nature of his job—that he would not be discriminated against for his medicinal marijuana use. |
| Impact(s): Employers in states with medical marijuana programs |
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| U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN: Proposed FCRA lawsuit against Time Warner dismissed |
| Summary: A proposed FCRA lawsuit against Time Warner was dismissed by a Wisconsin federal court, finding that the job applicant couldn’t show he had suffered real damages. Citing the U.S. Supreme Court’s Spokeo ruling, the court ruled that the plaintiff failed to show how he was harmed when the employer allegedly checked his credit without his express permission during the job application process. |
| Impact(s): FCRA compliance – for general legal review |
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| U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA: Court rules that job applicant’s admission that he used a false Social Security number cannot be a basis for disqualifying him from employment on good moral character grounds |
Summary: A federal court in California ruled that a job applicant’s admission that he used a false Social Security number cannot be the basis for disqualifying him from employment on good moral character grounds and awarded the plaintiff over $1 million dollars as a result of the employer’s actions. During an interview and routine background check, the plaintiff admitted to previously using a false SSN to seek employment. The California Department of Corrections and Rehabilitation (CDCR) denied his employment application and sent him a rejection letter stating that his past usage of a false SSN showed that he was “not suitable to assume the duties and responsibilities of a peace officer.” The letter also stated that using the SSN showed a “willful disregard of the law” and a “lack of honesty, integrity, and good judgment.” The plaintiff filed a lawsuit against the CDCR seeking damages based on a violation of Title VII of the Civil Rights Act. He argued that as a Latino job applicant, he was subjected to national origin discrimination because the job application process required him to disclose that he had used a false SSN in the past.
The court held that while California law required the CDCR to conduct a background investigation to ensure good moral character, the “good moral character” hiring policy had a significant disparate impact on Latino applicants like Guerrero, even though it was facially neutral. In light of that, the CDCR had a duty to apply the relevant EEOC factors – which it failed to do – resulting in the court holding in favor of Guerrero on the Title VII disparate impact claim. |
| Impact(s): All employers |
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| OTHER UPDATES |
| FAIR CREDIT REPORTING ACT: Plaintiffs seek class certification in suit against Rite-Aid alleging FCRA violations |
| Summary: Job applicants are asking the court to certify a class action against Rite Aid for allegedly failing to follow the FCRA’s pre-adverse action process. The allegations stem from entries into Rite Aid’s system classifying applicants as “ineligible” or “non-competitive,” which automatically triggered a “pre-adverse action” package, which plaintiffs argue is in effect an adverse action. |
| Impact(s): FCRA compliance – for general legal review |
| View source document |
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| FAIR CREDIT REPORTING ACT: Sprint settles proposed FCRA class-action lawsuit |
| Summary: Sprint settled a proposed class action accusing the phone carrier of violating the Fair Credit Reporting Act by asking prospective employees to waive an array of privacy rights. |
| Impact(s): FCRA compliance – for general legal review |
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| FAIR CREDIT REPORTING ACT: Frito-Lay agrees to settle FCRA class-action lawsuit |
| Summary: Frito-Lay has agreed to pay nearly $1 million to settle a class action alleging that it failed to provide notice to job applicants and employees prior to taking adverse employment action against them based on information in a consumer report. |
| Impact(s): FCRA compliance – for general legal review |
| View source document |
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| CALIFORNIA: California Fair Employment & Housing Council amends proposed rules to restrict employer use of criminal history |
| Summary: The California Fair Employment & Housing Council issued recently amended proposed regulations that set out numerous ways in which employers can face liability when using a job applicant's or employee’s criminal history in hiring and in making other employment decisions. |
| Impact(s): California employers |
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