Legislative Alert

ENACTED LEGISLATION

NEW YORK: New York City employers cannot ask about applicants' salary history

Summary: Effective Oct. 31, 2017, New York City employers generally may not inquire about or rely upon a job applicant's salary history in making employment decisions.

In addition to prohibiting employers from inquiring about salary history on job applications or through prior employers, the law prohibits employers from searching public records for such information. The City has issued guidance for both employers and employees in light of the upcoming effective date.

Impact(s): New York City employers

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NEW YORK: New York allows sealing of old criminal convictions

Summary: New York authorized state courts to seal nonviolent criminal convictions that are more than 10 years old. New York Criminal Procedure Law ("C.P.L") §160.59 allows defendants to apply to seal one felony and one misdemeanor conviction, or two misdemeanor convictions, for offenses other than violent and Class A felonies, and most sex crimes, after the passage of 10 years from the later of conviction or release from prison.

Impact(s): New York employers

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PROPOSED LEGISLATION

FEDERAL: Federal "Ban the Box" law advances

Summary: The Senate Committee on Homeland Security and Governmental Affairs favorably reported on a federal "Ban the Box" bill and sent it to the Senate for further consideration.

The Fair Chance to Compete for Jobs Act of 2017, S. 842, would prohibit federal agencies and prime federal contractors from requesting criminal history information from job applicants prior to a conditional offer of employment. The bill would also mandate that the U.S. Census Bureau and the Bureau of Justice Statistics issue a report on the employment of formerly incarcerated individuals.

Impact(s): Federal agencies and prime federal contractors

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FEDERAL: Comprehensive credit reporting legislation introduced

Summary: Congress has reintroduced comprehensive credit reporting reform legislation. H.R. 3755 would make several changes to the FCRA, including giving the CFPB oversight of the development of credit score models; creating new dispute resolution requirements; shortening the time that derogatory information stays on credit reports; restricting the use of credit for employment purposes; providing consumers with free credit scores; and placing restrictions on direct to consumer products.

S. 1786 has also been introduced, which would require CFPB to establish minimum accuracy procedures for CRAs, as well as require CRAs to gather and report information on consumer disputes. The bill would also provide free scores to consumers and direct the GAO to conduct a study of the feasibility of a public credit reporting system in the US.

Impact(s): All employers

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FEDERAL: Congress focuses on Federal security freeze legislation

Summary: Members of the House and Senate introduced legislation to create a national security freeze law. S. 1816 would require consumer reporting agencies (CRAs) to allow for the placement, lift or removal of a freeze at no cost.

Also introduced was S. 1810, which would prohibit CRAs from charging for a freeze. In the House, Rep. Jim Himes (D-CT) and 12 Democratic cosponsors introduced H.R. 3766, which would require CRAs, if they are breached, to allow consumers to place a credit freeze at no charge. If a consumer is found to be a victim of the breach, the consumer would be allowed to place, lift or remove a freeze at no cost on an unlimited basis.

Impact(s): All employers

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MICHIGAN: Senate approves ban on local rules for job interviews

Summary: Michigan's state Senate voted to prohibit municipalities from regulating what information employers must request, require or exclude during job interviews. The action was taken in light of several recent jurisdictions enacting salary history bans, prohibiting employers from asking applicants and employees about past salary histories.

Impact(s): Michigan employers

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COURT OPINIONS

U.S. DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA: Judge rules applicant does not have standing to bring FCRA action for employer's failure to follow pre-adverse action requirements because applicant obtained the consumer report from another source

Summary: A Florida federal judge held that a rejected applicant could not sustain a proposed FCRA class action over an employer's alleged failure to follow the FCRA's pre-adverse action requirements because the plaintiff received a copy of his report from another source and therefore was not harmed per the U.S Supreme Court's Spokeo decision. Court records showed that the consumer reporting agency has informed the plaintiff it had provided his information to the employer and provided plaintiff with a copy of his report and a summary of his rights. "The court does not find that [Plaintiff] suffered an informational injury because he obtained all of the information to which [he was] entitled, albeit not from [the employer]."

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

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OTHER UPDATES

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION: EEOC sues energy delivery company over pre-employment medical exams

Summary: The U.S. Equal Employment Opportunity Commission (EEOC) has filed an action against an energy delivery company, alleging that job applicants at the utility were subjected to pre-offer medical examinations in violation of the Americans with Disabilities Act. The EEOC also brings claims for violations of the Genetic Information Non-Discrimination Act and Title I of the Civil Rights Act of 1991. The EEOC alleges that the group of applicants had successfully completed the exam and interview process, but were not hired after a pre-employment medical examination because of "actual or perceived" disabilities, and the company wrongly asked for genetic information as an employment condition.

Impact(s): All employers – for general legal review

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