Legislative Alert

ENACTED LEGISLATION

ARKANSAS: Employers must supply background check reports to applicants and employees upon request

Summary: Effective Aug. 4, 2017, Arkansas law requires Arkansas employers to provide applicants and employees with a copy of their background screening report upon request.

Specifically, Arkansas Statute § 11–3–206 requires that: “Upon the request of an employee or an applicant for employment, an employer that receives background check information regarding an employee or an applicant for employment shall provide a copy of the background check information to the employee or applicant for employment.”

Impact(s): Arkansas employers

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INDIANA: Senate Bill 312 allows employers to use an individual’s criminal history in hiring decisions

Summary: Senate Bill 312 provides that a political subdivision may not prohibit an employer from obtaining or using criminal history information during the hiring process to the extent allowed by federal or state law, rules, or regulations. The law also provides that this provision does not supersede any federal or state law requirement to conduct a criminal history information background investigation or consider criminal history information in hiring for particular types of employment.

Impact(s): Indiana employers

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COURT OPINIONS

CALIFORNIA SUPERIOR COURT COUNTY OF LOS ANGELES: Applicants win certification in background check suit

Summary: A California judge certified two classes of prospective employees who allege a company violated the Fair Credit Reporting Act by not giving them copies of their background checks before making a decision on their employment, depriving them of an opportunity to contest an inaccurate report.

California Superior Court Judge Ann I. Jones granted certification to a class of job applicants who were subject to “no hire” recommendations based on information in a background check, as well as to a class of applicants who signed a consent form that plaintiffs allege did not effectively disclose a screening would be taking place.

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

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MASSACHUSETTS SUPREME JUDICIAL COURT: Court rules employee can pursue state law disability discrimination claim for failure to accommodate off-duty use of medical marijuana

Summary: The Massachusetts Supreme Judicial Court unanimously held that an employee may pursue a disability discrimination claim under state law against her former employer for failing to accommodate the employee’s use of medical marijuana. This is the first decision by any state’s highest court to recognize a duty to accommodate medical marijuana users at work. The case involved a plaintiff who used medical marijuana for Crohn’s disease. She was applying for an entry-level position at a marketing firm. She alleged that she disclosed her medical marijuana use prior to the drug screen and was reassured by a supervisor that her medical marijuana use would not be an issue, but after working for just one day, was fired for testing positive for marijuana on the drug test. After she complained that state law permitted her off-duty marijuana use, a company representative told her that the company follows federal law, not state, law.

The court based its decision on the language in Massachusetts’ Medical Marijuana law, which provides that qualifying medical marijuana users shall not be denied “any right or privilege” on the basis of their medical marijuana use. Because disabled employees have a statutory “right or privilege” to a reasonable accommodation, any ruling other than permitting off-duty marijuana use as a reasonable accommodation would deny that “right or privilege.”

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

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OTHER UPDATES

U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA: Company says $60M FCRA verdict warrants new trial

Summary: A jury found that a nationwide credit bureau owed $60 million in damages for violating the FCRA by conflating a class of consumers with similarly named terrorists and criminals from a government watch list. The company recently told a California federal court that the award was excessive and asked for a new trial.

The suit dates back to 2012 when the plaintiff alleged that he was prevented from buying a car in 2011 because the company told lenders he potentially matched two entries on the OFAC list.

A nationwide class and a California subclass were certified in 2014, comprising consumers whom the company allegedly failed to properly inform were matched with names on the OFAC list.

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

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MAINE: Department of Labor clarifies its position on drug testing and marijuana

Summary: Maine Department of Labor Director of Policy, Operations and Communications, Julie Rabinowitz, reported to a legislative panel yesterday that businesses with Maine-state drug testing policies should not test job applicants and workers for marijuana because even if the tests came back positive, employers cannot fire the individual. This determination is based on the Marijuana Legalization Act; specifically, Sections 2454(2) and 2454(3).

Impact(s): Maine employers

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