Legislative Alert

ENACTED LEGISLATION

ILLINOIS: Governor signs legislation preventing state agencies from inquiring about salary histories

Summary: Effective Jan. 15, 2019, Gov. J.B. Pritzker signed an Executive Order banning state agencies from inquiring about a job applicant's salary history or from screening applicants based on their prior wages, benefits or other compensation.

Impact(s): Illinois state agencies

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U.S. VIRGIN ISLANDS: Limitations imposed on employers' use of criminal records

Summary: Act No. 8134, which amends Title 24 of the Virgin Islands Code Chapter 17, broadly prohibits employers from asking applicants to disclose information regarding an arrest or detention that did not lead to a conviction, "a referral to, or participation in, any pretrial or post trial diversion program," or "a conviction that has been judicially dismissed or ordered sealed pursuant to law." The criminal background information may not be used as a factor in determining any condition of employment, including "hiring, promotion, termination, or any apprenticeship training program or any other training program leading to employment." An employer may ask about an arrest for which the applicant has been released on bail or is out on his or her own recognizance or for which the applicant is seeking a position with regular access to patients, drugs, or medication. Additionally, the law does not apply to applicants for employment or current employees of criminal justice agencies or when state or federal law requires the applicant to be rejected based on his or her criminal background. Violations of the act can lead to civil and criminal penalties.

Impact(s): U.S. Virgin Islands employers

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COURT OPINIONS

U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT: Ninth Circuit holds that inclusion of required state notices in FCRA disclosure form violates "stand-alone" requirement

Summary: The Ninth Circuit doubled-down on its previous ruling, holding that the Fair Credit Reporting Act (FCRA)'s prohibition on including "extraneous" information in a disclosure form extends even to information about the legal rights that job applicants have under state fair credit reporting laws. Previously, in Syed v. M-I, the Ninth Circuit held that an employer acted "willfully" in violation of the FCRA when it included a liability waiver in its FCRA disclosure form.

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

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U.S. DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA: Court grants motion to certify a class of five million workers in an FCRA action against a major U.S. retailer

Summary: The court has granted certification of a class of approximately five million workers, who can now pursue a class action against a major retail company which they claim failed to give applicants stand-alone disclosure documents in violation of the FCRA. The court also granted the plaintiffs' motion to add additional class representatives to the case due to lead plaintiff suffering from a chronic illness. The applicants and employees are also pursuing claims under California's Investigative Consumer Reporting Agencies Act.

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

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U.S. DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA: Settlement reached in class action alleging FCRA violation

Summary: A $2 million settlement was approved between a large food distributor and more than 32,000 class members who claim they were presented with illegal background check disclosure and authorization forms that sought to include "an abundance of unnecessary language that went beyond federal and state legal requirements." Plaintiffs contended that the disclosures were improper under both the FCRA as well as the California Investigative Consumer Reporting Agencies Act and the California Consumer Credit Reporting Agencies Act. The forms allegedly included questions about applicants' personal information such as driver's license information, citizenship status, old addresses and criminal and employment history.

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

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SUPERIOR COURT OF DELAWARE: Delaware court holds federal law does not preempt employee protections under state medical marijuana law

Summary: The Superior Court of Delaware recently issued a decision confirming the state's protections for medical marijuana users. The court held that the federal Controlled Substances Act (CSA), which prohibits the use and sale of marijuana, does not preempt Delaware's Medical Marijuana Act (DMMA). Delaware is one of the few states that expressly prohibits the discipline or discharge of employees who use medical marijuana outside of work and subsequently test positive on a job-related drug test absent evidence of on-duty use/possession or impairment. The language of the DMMA was therefore arguably more susceptible to a challenge that a conflict existed between state and federal law.

The court acknowledged that the DMMA may appear "at odds" with the CSA at first glance; however, it ultimately concluded, like two other courts in Connecticut and Rhode Island did in 2017, that no conflict existed because the CSA does not make it illegal to employ someone who uses marijuana. The court further emphasized that the CSA does not seek to regulate any employment matters in this context. As a result, the court concluded that the DMMA does not pose an obstacle to the objectives of the federal government because it does not require employers to engage in any illegal activity; rather it simply prohibits employers from discriminating against those who engage in such activity (as a matter of federal law).

The decision is also the first to imply a private cause of action under DMMA's employment anti-discrimination provision.

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

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