Legislative Alert

PROPOSED LEGISLATION

U.S. CONGRESS: Bill introduced to "Ban the Box" for all federal employees and contractors

Summary: The Fair Chance Act has been introduced to expand "Ban the Box" policies to include the federal government and federal contractors. The Act would prevent the federal government, including the executive, legislative and judicial branches, from requesting criminal history information from applicants until they reach the conditional offer stage. The Act would also prohibit federal contractors from requesting criminal history information until the conditional offer stage, would include exceptions for positions related to law enforcement and national security duties, and would require the Bureau of Justice Statistics to issue a report on the employment statistics of formerly incarcerated individuals.

Impact(s): Federal employers and contractors

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COURT OPINIONS

U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA: Applicant claims employer's disclosure form for employment credit checks is improper

Summary: A plaintiff has filed an action against a large retailer alleging a violation of the Fair Credit Reporting Act (FCRA)'s stand-alone disclosure requirement. The plaintiff claims that the employer provided him with a "standard application form" that failed to properly disclose the employer's intention to conduct a credit check. Specifically, the plaintiff alleges that the disclosure contained other extraneous information and did not come in a form that consists "solely of the disclosure." The plaintiff filed this suit on behalf himself as well as on behalf of anyone for whom the employer obtained a consumer report "for employment purposes" in the last five years, estimated to be more than 1,000 individuals.

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

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U.S. DISTRICT COURT FOR THE DISTRICT OF ARIZONA: Termination of employee for use of medical marijuana violated state anti-discrimination protections

Summary: An Arizona judge has denied a defendant's request for summary judgment as to Plaintiff's allegation of discrimination and retaliation under the Arizona Medical Marijuana Act (AMMA). The case arose from the plaintiff being terminated for testing positive for marijuana on a post-accident drug test. The employer requested summary judgment arguing that a positive drug screen proved impairment and that termination was justified, but the court found that the defendant did not provide evidence to establish that plaintiff was impaired. Furthermore, the court found that the plaintiff met the qualification for her retaliation claims under the employment protection act and workers compensation laws but, since defendant was able to provide a non-retaliatory reason to justify the firing, the judge said there was no retaliation. The case will proceed to hearing on the AMMA claim.

Notably, Arizona's Rev. Stat. § 36-2813(B) states that employers generally cannot penalize registered medical marijuana patients for a positive drug test for marijuana 'unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment."

Impact(s): Drug screening compliance – for general legal review

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OTHER

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION: Final rule rescinds certain recordkeeping requirements and provides clarification on post-incident drug testing

Summary: The Occupational Safety and Health Administration (OSHA) recently issued a final rule rescinding major portions of its electronic reporting rule. Specifically, the rule (1) amends the recordkeeping rules for employers with 250 or more employees; (2) further clarifies OSHA's position on post-incident drug testing and workplace incentive programs; and (3) reaffirms OSHA's position that certain injury and illness data can be used to expand the scope of an on-site inspection. The rule takes effect on Feb. 25, 2019.

Specifically, the final rule reiterates that the antiretaliation provision of the reporting rule does not prohibit workplace safety incentive programs or post-incident drug testing. The final rule makes clear that OSHA's Oct. 11, 2018 memorandum and update regarding drug testing and incentive programs remains the agency's position. OSHA reaffirmed that the antiretaliation provisions in § 1904.35(b) do not ban post-incident drug testing or incident-based incentive programs. OSHA again clarified that the antiretaliation provisions prohibit employers from implementing drug testing and incentive programs to penalize workers for reporting injuries or illnesses. To avoid confusion going forward, OSHA has confirmed that to the extent the earlier OSHA preamble stated otherwise, it has now been superseded.

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

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