| ENACTED LEGISLATION |
| CALIFORNIA: California bans salary history inquiries for job applicants |
Summary: Gov. Jerry Brown signed into law a statewide ban on employer inquiries into an individual's salary history. The new law (AB 168) will apply to all employers, including state and local governments, and will take effect on Jan. 1, 2018. Under AB 168, no employer may rely on an applicant's prior salary history "as a factor in determining whether to offer employment … or what salary to offer an applicant." Salary history information includes both an individual's rate of compensation as well as other benefits. Moreover, an employer cannot—orally or in writing, directly or indirectly—seek this type of information about an applicant.
There are certain exceptions to the salary history restriction. First, employers may review and consider salary history information that is publicly available pursuant to federal or state law. Second, salary history may be discussed if an applicant "voluntarily and without prompting" discloses his or her history to a potential employer. |
| Impact(s): California employers |
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| CALIFORNIA: California amends background check law to narrow background information that may be used in employment decisions |
| Summary: The state has amended its background checks law with respect to what may be included in state summary criminal history information. Under the new regulations, the Fair Housing and Employment Act will prohibit employers from utilizing criminal records and information in employment decisions, if doing so would have an adverse impact on individuals on a basis enumerated in the law (e.g., race, color or national origin) that the employer cannot prove is job-related and consistent with business necessity or if the employee or applicant has demonstrated a less discriminatory alternative means of achieving the specific business necessity as effectively. Further, except if otherwise specifically permitted by law, employers are prohibited from considering certain types of criminal history, or seeking such history from the employee, applicant, or a third party, when making hiring, promotion, training, discipline, layoff and termination decisions. |
| Impact(s): California employers |
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| CALIFORNIA: California finds that all rights and protections are available to all employees, regardless of immigration status |
| Summary: The California Labor Code makes a legislative finding and declaration that all protections, rights and remedies available under state law, except as prohibited by federal law, are available to individuals regardless of immigration status who have applied for employment or who are or have been employed. |
| Impact(s): California employers |
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| CALIFORNIA: California passes statewide "Ban the Box" law |
Summary: Effective Jan. 1, 2018, AB 1008 makes it unlawful for California employers with at least five employees to: a) include on any application for employment any question that seeks the disclosure of an applicant's conviction history; b) inquire into or consider the conviction history of an applicant before the applicant receives a conditional offer of employment; and c) consider, distribute, or disseminate information about any of the following while conducting a criminal history background check in connection with any application for employment: (1) an arrest that did not result in a conviction, subject to the exceptions in Labor Code § 432.7(a)(1) and (f); (2) referral to or participation in a pretrial or post-trial diversion program; and (3) convictions that have been sealed, dismissed, expunged or statutorily eradicated pursuant to law. The law requires employers to conduct individualized assessments and provides that the employer "may, but are not required to, commit the results of this individualized assessment to writing."
Once the employer makes a preliminary decision that the applicant's conviction history is disqualifying, the employer must notify the applicant of this preliminary decision in writing. However, the employer is not required to justify or explain to the applicant its reasoning for making the preliminary decision. But, the employer must: 1) provide the written notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer; 2) include a copy of the conviction history report, if any; and 3) provide an explanation that the applicant has the right to respond to the notice within at least five (5) business days, and that the response may include submission of evidence challenging the accuracy of the conviction record, or evidence of rehabilitation or mitigating circumstances or both.
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| Impact(s): California employers |
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| COLORADO: Colorado Department of Labor gives Director of Division of Labor Standards authority over rules |
| Summary: The Colorado Department of Labor and Employment, Division of Labor Standards and Statistics, has adopted Employment Opportunity Act Rules to provide the Director of the Division of Labor Standards and Statistics with the authority to adopt and amend rules and regulations pertaining to the implementation of the Colorado Employment Opportunity Act. The rules were published in the Colorado Register on Aug. 10, 2017, and became effective Sept. 1, 2017. |
| Impact(s): Colorado employers |
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| COLORADO: Colorado Department of Labor and Employment, Division of Labor Standards and Statistics adopts new laws to protect privacy on social media |
| Summary: Rules implementing the Colorado Social Media and the Workplace Law have been adopted by the Colorado Department of Labor and Employment, Division of Labor Standards and Statistics. These rules prohibit employers from requiring employees to provide access to employees' social media accounts. |
| Impact(s): Colorado employers |
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| INDIANA: Indiana passes law banning criminal questions on initial applications |
| Summary: Gov. Eric J. Holcomb has signed an executive order creating a "Ban the Box" policy for positions with the Indiana state government. Effective July 1, 2017, initial employment applications for job openings within the executive branch of the State of Indiana will no longer ask applicants if they have been arrested or convicted of a crime. |
| Impact(s): Indiana public employers |
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| PROPOSED LEGISLATION |
| FEDERAL: Senate passes bill to open FBI sex offender database |
| Summary: The U.S. Senate passed a bill backed by Sen. Charles Schumer that would authorize the FBI to provide sex offender information to organizations that work with children. The bill passed by the Senate now moves to the House. The legislation requires organizations to pay a fee for the background checks, which would be conducted by the U.S. Department of Justice. Job applicants would be able to challenge the accuracy of their records with the FBI. |
| Impact(s): Organizations working with children |
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| MISSOURI: St. Louis proposes law to prohibit enforcement of marijuana laws and limit employment drug testing |
| Summary: A St. Louis ordinance has been introduced that would prohibit the city from enforcing any state or federal marijuana laws and would ban employers from drug testing for marijuana. Currently, possession of fewer than 35 grams of marijuana in the city of St. Louis has been reduced to a fine with no jail time. |
| Impact(s): All employers |
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| PENNSYLVANIA: Philadelphia adopts regulations clarifying the still-stayed ordinance banning salary history inquiries |
Summary: The Philadelphia Commission on Human Relations has adopted regulations interpreting portions of a City ordinance, which if upheld, would prohibit employers from seeking applicants' wage and benefits history. The Regulation mostly restates what was included in the Ordinance. The Regulation does, however, narrow the Ordinance's coverage to those positions physically located in Philadelphia. The Regulation restates that an employer must not include a question on paper or electronic employment applications asking prospective employees to provide their salary history. Applicants may be asked other questions that are relevant to setting salary, such as the applicant's salary requirements or expectations.
The effective date of the Ordinance remains stayed pending resolution of litigation filed by the Chamber of Commerce for Greater Philadelphia. |
| Impact(s): Philadelphia employers |
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| COURT OPINIONS |
| U.S. DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA: Major retail chain dodges background check suit, Spokeo cited |
| Summary: A California federal judge dismissed a proposed class action alleging that a national retail chain violated the Fair Credit Reporting Act (FCRA)'s stand-alone disclosure requirement by including a liability waiver in its disclosure form, finding that the applicants failed to demonstrate a concrete injury as required by Spokeo. While noting that the plaintiff had tried to explain she'd suffered injury by waiving any liability the retailer might face "for any unlawful use of her information," the Judge disregarded those arguments because they were not pled in the complaint but proffered in her opposition to the retailer's motion to dismiss. |
| Impact(s): FCRA compliance – for general legal review |
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| U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA: Court preliminarily approves $1.1M settlement of FCRA suit over employer's background check disclosure form |
| Summary: In the wake of a decision finding that a putative class of plaintiffs suing under the FCRA established a concrete injury sufficient for Article III standing, the parties reached a settlement of the suit claiming the employer violated the FCRA by failing to provide applicants with a stand-alone disclosure form. A federal district court in Florida determined that the agreement was negotiated at arm's length and appeared fair, reasonable, and adequate, and preliminarily approved the $1.1 million settlement and certified a class for that purpose. The plaintiffs had alleged that the employer's disclosure form included a liability waiver. |
| Impact(s): FCRA compliance – for general legal review |
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| U.S. DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON: Popular coffee chain faces suit over alleged violations of FCRA's "pre-adverse action" requirements |
| Summary: A Washington federal court held that a job applicant has standing to sue a coffee chain for allegedly violating the FCRA's pre-adverse action requirements and that the loss of the potential job is a concrete injury that can be traced to the decision made by the coffee chain because the plaintiff allegedly lost his job opportunity before being notified of the background check and getting the opportunity to correct it. |
| Impact(s): FCRA compliance – for general legal review |
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