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Background Check Bill Introduced to Protect Florida Renters

Certain industries require mandatory background checks of employees according to law. Florida is looking to add to that list apartment employees. A new bill, if passed, looks to improve safety and security for tenants. On November 12, 2021, Florida Senator Linda Stewart introduced SB 898 in the Florida Senate. Known as “Miya’s Law,” the bill was introduced in response to the tragic case of Miya Marcano.

“Miya’s death is an awful tragedy – one that has put a spotlight on problems with apartment safety and security,” said Senator Stewart. “We’ve heard too many horror stories of some landlords disregarding the security of their tenants by issuing master keys to maintenance workers without running any background checks. Everyone deserves to feel safe in their homes and we are hopeful that ‘Miya’s Law’ will help make that a reality.”

Bill Defines Employment Requirements

As introduced, SB 898 mandates that landlords require each employee of their apartment establishments to undergo a background check as a condition of employment. Those background checks must:

  • Be performed by a Professional Background Screening Association (PBSA) accredited consumer reporting agency, like Verified Credentials;
  • Include a criminal history check;
  • Search sex offender registries from all 50 states and Washington, D.C.

According to the bill, landlords may disqualify a person from employment if the person has been convicted or found guilty of, or entered a guilty or nolo contendere plea to, the following offenses:

  • Criminal offenses involving disregard for the safety of others that are felonies or misdemeanors of the first degree in Florida or would be considered felonies or misdemeanors of the first degree in Florida if the offenses were committed in another state.
  • Criminal offenses committed in any jurisdiction which involve violence including, but not limited to, murder, sexual battery, robbery, carjacking, home-invasion robbery, and stalking.

Additional Landlord Obligations

In addition to background check requirements, “Miya’s Law” would introduce new safety requirements for landlords. These additional requirements address when and how apartment employees can access tenant units.

Florida state law currently requires apartment employees to provide notice 12 hours before entering a tenant’s home for property repair. If passed, the new law would increase the notice time to 24 hours.

For added tenant safety, the bill includes additional requirements around unit keys. If passed, Landlords will be required to maintain a log accounting for the issuance and return of all keys for each dwelling unit. They must also establish policies and procedures for issuing and returning dwelling unit keys and regulating the storage of and access to unissued keys.

SB 898 is in the early stages of the legislative process and is not yet law. However, the bill has received support from Florida lawmakers and the Florida rental housing industry. Representative Robin Bartleman has filed HB577 in the Florida House, a companion bill to Senator Stewart’s bill in the Senate. The Florida Apartment Association stated, “FAA looks forward to remaining engaged in this effort during the 2022 legislative session and thanks to Senator Stewart and her legislative staff for their hard work on this legislation.”

Employers in Florida may want to follow this bill as it proceeds through the legislative process. Verified Credentials will provide updates as they become available.

A Potential Case of Negligence in Florida Emphasizes Screening for Risky Hires

It’s a nightmare scenario when there is a threat to an individual. Or worse, if someone takes another’s life. While tragedies related to an employee are rare, they’re situations for which HR teams may choose to prepare. Many employers even pinpoint safety as a top reason for doing background checks.

A recent complaint filed in Florida relates to a terrible situation like this. An employee of a housing complex allegedly killed a woman, who was a fellow employee and tenant. And while the details are startling, this pending case is a reminder to employers. Companies run a risk of negligence if they don’t hire and employ responsibly. They should act with the safety of their staff, customers, and the public in mind.

Alleged Events that Ended in Tragedy

The estate of the alleged victim, Miya Marcano, filed a lawsuit in Orange County, Florida on October 18, 2021 against Arden Villas Apartments, LLC (“Arden Villas Apartment”) and the D.P Preiss Company, Inc. (“Preiss”), among others. The complaint states that Marcano was hired by Preiss in June, 2021 to work in the front office of the Arden Villas Apartments, where she was also a tenant.

According to the complaint, during her employment, Marcano met Armando Caballero, who also was employed by Arden Villas Apartments and/or their agents or employees, including Preiss. At some point, she voiced her discomfort with Caballero to her parents and colleagues. But, according to the complaint, it was common for management at the complex to ignore complaints from staff and tenants.

In September 2021, Caballero allegedly kidnapped Marcano from her own apartment. The complaint states that Caballero used a key fob, or other access control device, given to him by the defendants to get into Marcano’s residence. She was later found dead.

The complaint states that “At no time was [Marcano] made aware by the management of Arden Villas that Caballero had a criminal background, a history of harassing women, nor was she aware that Caballero would have unsupervised and/or free access to her apartment.”

Accusations of Negligence

Among other claims, the complaints alleges that the defendants should have been aware of the risk Caballero posed. Defendants knew, or should have known, “that he should have not been hired, not been retained, and/or not been given a key fob (or other access device) that provided unfettered access to apartments…”

Additionally, the complaint alleges that because some employees had access control devices that allowed them to enter apartments, “Defendant had a duty to ensure that all persons that sought to work for defendant and/or at Arden Villas, were properly vetted, and that only appropriate persons were hired”.

Filing documents allege that Arden Villas and others breached their duty to exercise reasonable care and safety for the protection of residents, including Marcano. They also claim that the defendants acted in a negligent manner in various respects, including, but not limited to:

  • Failing to adequately vet prospective employees, including Caballero
  • Failing to contact the prior employers of prospective employees, including Caballero
  • Failing to conduct criminal background searches of prospective employees, including Caballero
  • Failing to implement or execute an adequate screening process for potential employees, thereby allowing persons, that otherwise would be deemed dangerous, to work at Arden Villas

This case is pending and the allegations remain only allegations at this stage in litigation. However, this case highlights the potential risks to employers, their staff and customers, and more. Hiring candidates without proper vetting can result in a dangerous situation. Employers may want to work with their legal counsel to determine if their current background checks thoroughly protect their organization.

Washington’s Vast Approach to Background Check Disclosures

Those that have visited the Pacific Northwest know the beauty of the area. The region is known for lush forests, majestic mountains, and stunning waters. Washington alone is home to Olympic National Park, Mount Rainier, and the Columbia River Gorge. One could easily get lost in the wilderness of Washington.

But getting lost in Washington could mean more than just the physical area, especially for employers. The state ranks among the top in labor protection laws – meaning there is a lot for employers in the state to navigate. That includes laws around background checks.

Washington Fair Credit Reporting Act

Like California, New York, and others, Washington has state-specific laws regulating background reports. Chapter 19.182 of the Revised Code of Washington was enacted in 1993. Known as the (Washington) Fair Credit Reporting Act, the Washington state law covers state-specific requirements for background reports.

  1. Consumer Reports

Washington state law defines a “consumer report” (“background report”) as any information, with some exceptions, by a consumer reporting agency bearing on a candidate’s creditworthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living used for:

  • Employment purposes
  • Establishing eligibility for credit or insurance to be used primarily for personal, family, or household purposes
  • Other reasons authorized by state law

 Washington Consumer Report Disclosure Requirements:

Employers in Washington must pay attention to state-specific disclosure requirements before obtaining a background report for employment purposes.

If obtaining a background report for employment purposes for someone that isn’t a current employee:

  • The employer must provide a clear and conspicuous disclosure, in writing, to the candidate that they may obtain a consumer report for purposes of considering the candidate for employment. Before getting the report, they must provide the disclosure to the candidate. Employers can include the disclosure in a written statement contained in employment application materials; or
  • The candidate must authorize the procurement of the report.

If getting a background report for employment purposes for a current employee, the employer must provide a written notice to the employee stating that purpose. This can happen at any time after the person became an employee.

  • According to Washington state law, “A written statement that consumer reports may be used for employment purposes that is contained in employee guidelines or manuals available to employees or included in written materials provided to employees constitutes written notice…”

Employers should note additional requirements if the background reports they obtain for employment purposes contain information on a candidate’s creditworthiness, credit standing, or credit capacity.  Employers cannot get a background report on a candidate with this credit information unless the information:

  • Is substantially job-related, and the employer discloses their reasons for the use of credit information to the candidate in writing; or
  • Is required by law
  1. Investigative Consumer Reports

Some employers may want more personal information about their candidates. This might include details about what the candidate is like as an employee, how they perform in certain work situations, or their strengths and weaknesses. For this information, employers may choose to take a more exploratory approach and obtain information about their candidates through personal interviews.

If your background report contains information obtained through personal interviews, you may be obtaining an “investigative consumer report.”  Washington state law defines an investigative consumer report as, with some exceptions, a background report that contains information on a candidate’s character, general reputation, personal characteristics, or mode of living obtained through personal interviews with neighbors, friends, associates, or acquaintances of the candidate.

Washington Investigative Consumer Report Disclosure Requirements:

Washington law requires employers to provide candidates with a unique written disclosure for investigative consumer reports. An employer cannot obtain an investigative consumer report unless either:

  • They disclose clearly and accurately to the candidate that they may use an investigative consumer report, including information as to the candidate’s character, general reputation, personal characteristics, and mode of living, and the disclosure:
    • Is made in writing and either mailed or delivered to the candidate within three days after requesting the investigative consumer report; and
    • Includes a written statement informing the candidate of the candidate’s right to request both: (i) A complete and accurate description of the nature and scope of the investigation upon submitting a written request to the employer within a reasonable period after receipt of the disclosure; and (ii) A written summary of the candidate’s rights under Washington state law.
  • They will use the report for employment purposes for which the candidate has not specifically applied.

Wondering where to start? We offer sample compliance documents to help. You can review our sample Washington disclosures when creating your own. Simply log into your Verified Credentials Employee® account and go to the Resource Library. Download the “Washington Consumer Report Disclosure” and “Washington Investigative Consumer Report Disclosure” samples to get started.

The state of Washington established these requirements to protect candidates. Employers may want to explore the vast set of rules they face further. Those that hire in the state should work with their legal counsel to learn how these requirements apply to their screening program.

Philadelphia Inches Closer to Certain Drug Testing Limits

There has been a rise in legalizing medicinal and recreational cannabis across the United States. Some areas have expunged records related to marijuana. Others have decriminalized the use of marijuana. It seems attitudes about the drug have changed in the country. Maybe you’ve thought about how this impacts how you approach screening marijuana use for employment purposes.

We’ve been keeping tabs on the topic. Last year we talked about how Virginia passed a law that bans asking about certain marijuana-related offenses. This month we are looking at changes coming to Philadelphia.

Philadelphia’s New Law

Recent legislation in Philadelphia will make it an unlawful employment practice for an employer, labor organization, or employment agency to require a prospective employee to submit to testing for the presence of marijuana as a condition of employment.

There are certain exceptions. This restriction will not apply to candidates applying for jobs in certain professions, including:

  • Law enforcement positions
  • Roles requiring a commercial driver’s license
  • Any position requiring the supervision or care of children, medical patients, disabled, or other vulnerable people
  • Any job where the employee could significantly impact the health and safety of others determined by the city and identified in future regulations.

This restriction will also not apply to drug testing required by:

  • Federal or state law, regulation, or order that requires drug testing of applicants for safety or security purposes
  • Contracts between the federal government and employers or grants awarded by the federal government that require drug testing of applicants as a condition of receiving the contract or grant
  • Valid collective bargaining agreements that specifically address the pre-employment drug testing of applicants

What’s the Timeline?

Philadelphia’s City Council passed the proposed law on April 22, 2021. Mayor Jim Kenney signed the law on April 28, 2021. The law will become effective on January 1, 2022.

Verified Credentials will continue to monitor this legislation. If you think this law might impact your drug testing program, consider speaking with your legal advisor.

Fair Chance Violation Complaint Delivered to FedEx in New York City

The consequences of violating employment laws can be significant. Employers can face litigation, leading to big penalties. Macy’s recently experienced this in New York City. Now, FedEx Ground Package System, Inc. (“FedEx”) is accused, in a class action lawsuit, of violating New York City’s Human Rights Law (NYCHRL).

New York City’s Unique Package of Laws

As we previously discussed, the NYCHRL includes the New York City Fair Chance Act (FCA). The FCA places restrictions on how employers can use certain criminal history information and creates obligations and responsibilities for employers in NYC.  We also recently covered changes to the FCA that take effect at the end of July 2021.

Not On Time: FedEx Accused of Screening a Candidate Too Early

A class action complaint was filed on March 12, 2021 claiming FedEx violated the NYCHR, specifically the FCA (Franklin v. FedEx Ground Package System, Inc.).

The complaint states that the Plaintiff completed an online application with FedEx for a position in New York City.  The application process included the Plaintiff giving his consent to a criminal background check and providing FedEx with information it would need to conduct one.  In early December 2020, Plaintiff received a letter confirming that FedEx had been authorized to obtain a criminal background report and provided Plaintiff with a copy of the report.  The letter instructed the Plaintiff to report any inaccuracies to the consumer reporting agency and warned the Plaintiff: “If accurate, the information contained in the Report in whole or in part will significantly affect our decision regarding your potential for employment with FedEx Ground.  We are reviewing your application in light of the attached Report.”

The complaint claims that FedEx violated the FCA when it obtained criminal background reports before extending conditional offers of employment to both the Plaintiff and other applicants.  According to the complaint, FedEx told Plaintiff that it would be reviewing his application in light of the report, “but this is precisely what the [FCA] prohibits it from doing (before a conditional offer of employment is extended)”.  The complaint also alleges that FedEx violated the [FCA] when it stated that the content of the report would significantly influence its decision on whether or not to hire Plaintiff, “because the FCA is clear that a criminal background may influence a hiring decision only in a limited number of situations…”

The lawsuit alleges FedEx violated NYCHRL when the company:

  • Declared it would conduct background checks before making conditional offers of employment.
  • Conducted background checks before making conditional offers of employment.
  • Denied employment based on criminal conviction histories.

The case is still ongoing and the claims against FedEx remain allegations. We will continue to monitor the case and provide updates when available.

Like the Macy’s case, the accusations against FedEx show that even large corporations should stay up-to-date on consumer reporting laws. Employers should work with their trusted legal counsel to make sure they are following the laws that apply to them.

Employment Discrimination Based on Criminal History: A Cautionary Tale

The laws around employment background reports are vast. If you use background reports, you probably take care to follow all applicable federal, state, and local consumer reporting laws.

In addition to consumer reporting laws, you may want to consider anti-discrimination laws, too. Some states and cities have anti-discrimination laws that could prohibit conviction record discrimination.  Failing to consider state and local laws before making employment decisions based on criminal history could land an employer in hot water.

One Company’s Misstep

A Wisconsin employer is learning this lesson as outlined in the recent case of Cree, Inc. v. LIRC.

Cree, Inc., a company that manufactures and sells lighting products, offered a conditional offer of employment to an applicant contingent on a drug screen and background check.  The employer rescinded the offer of employment when the background report revealed that the applicant had “2012 convictions for strangulation/suffocation, fourth-degree sexual assault, battery, and criminal damage to property related to a domestic incident with a live-in girlfriend.”

The applicant had applied for an “Applications Specialist” position that would have the applicant working with more than “1100 employees, including about 500 women” in a facility that “includes a manufacturing space, storage areas with racks of parts, plus offices, conference rooms, cubicle farms, breakrooms, and the like.”  The applicant would have access to the entire facility, including areas without security cameras.  The position also included regular client interaction and unsupervised travel to both client locations and trade shows.

Tough Lesson in Court

The applicant “filed a discrimination complaint with the Wisconsin Department of Workforce Development alleging that [the employer] unlawfully discriminated against him when it rescinded a job offer for an Applications Specialist position based upon his conviction record.”  The Wisconsin Labor and Industry Review Commission (LIRC) found that the employer violated Wisconsin law and rescinded the “job offer based solely on his conviction record.”

A Wisconsin appellate court recently upheld the LIRC’s finding and held that the employer violated Wisconsin law.  The court states that “Wisconsin law prohibits an employer from refusing to hire a prospective employee on the basis of his or her conviction record…  The employer may, however, so discriminate if ‘the circumstances of [any felony, misdemeanor, or other offense] substantially relate to the circumstances of the particular job’ for which the employee is being considered.”

Disagreements on What “Substantially Relates”

Justifying its decision to rescind the offer of employment, the employer noted that the Applicant Specialist position would create “significant opportunity with which [applicant] could ‘commit additional crimes against persons and property.’”  The employer also stated that the applicant “would have… regularly interact[ed] with female coworkers whom he could later harm outside of work.”

The Cree court found that this argument was not enough to rescind the offer of employment to the applicant based on his conviction record.

The court noted that the applicant’s “criminal record does demonstrate a ‘tendenc[y] and inclination…’ to be physically abusive toward women in a live-in boyfriend/girlfriend relationship.”  However, the court held that “it would require a ‘high degree of speculation and conjecture’ to conclude that [applicant] would develop a live-in boyfriend/girlfriend relationship through the Applications Specialist job and… that mere contact with others at the facility and on the job is not substantially related to [applicant’s] domestic violence.”

The Cree court determined that the employer’s decision to rescind the offer of employment was “less focused on the circumstances of the particular job… and more focused on the general sense that [the applicant] is not fit to be unconfined from prison and participating in the community at all due to his prior crimes, even though he has long since finished serving the confinement portion of his sentence.”

Employers would be wise to take note of the Cree decision. Check state and local anti-discrimination laws before making an employment decision based on criminal history.

Not sure if any laws that would prevent you from using criminal history when hiring?  Talk to your legal counsel for the answers you need.

Heroes Act: Where the Pandemic and Background Checks Could Intersect

The coronavirus (COVID-19) pandemic has a far-reaching impact on us all. We’ve had to monitor access to courthouse records during state closures, certainly. Verified Credentials also helps employers navigate new hiring challenges. But in many ways, background reports have not had to tangle with the pandemic.  That may be changing soon.  With pending legislation in response to the national emergency, COVID-19 could impact your background reports.

On September 29, 2020, Congress introduced the “Heroes Act” (HR 8406) as a potential COVID-19 relief measure.

Potential Changes to the FCRA

The Heroes Act includes proposed amendments to the Fair Credit Reporting Act (“FCRA”).  If passed, the Heroes Act could place new limits on the ability to include some adverse information in background reports.

Except for felony criminal convictions, The Heroes Act would amend the FCRA to:

  • Prohibit furnishers of information from furnishing certain adverse information if the adverse information was the result of any action or inaction that occurred during COVID-19 (or future declared major disasters); and
  • Prohibit background reports from containing certain adverse information if the adverse information was the result of any action or inaction that occurred during COVID-19 (or future declared major disasters)

To read the full text of the Heroes Act, click here. The proposed FCRA amendments are listed in Section 401.

What Could Change in Background Reports?

If passed, the Heroes Act could have an impact on what appears in your background reports.  The amendments could prevent certain adverse information from showing up in your background reports, including:

  • Criminal information
  • Professional license sanctions
  • Other adverse information restricted by the Heroes Act

The Heroes Act – and its effect on your background reports – is a developing topic. The Heroes Act has not become law and is still in the early stages of the legislative process.  Verified Credentials will continue to monitor this proposed legislation.

Want to prepare for potential FCRA changes? You may want to consult with your legal counsel early to understand how the proposed Heroes Act may impact you.

Full Disclosure: Getting to Know Massachusetts Background Report Compliance Notices

Background checks from a background screening company start after a few basic steps. Consent forms must be signed, and disclosures presented. Once complete, we can get to work on a background report – and your candidates get to work for you. It’s not just federal compliance that drives disclosure and authorization forms. Some states have unique disclosures too. In addition to states like California, Massachusetts has disclosures for select background reports. Let’s get to know what those are.

Finding out if you need a Massachusetts disclosure

A Massachusetts-specific disclosure is not required for every background report. The requirements apply to investigative consumer reports on job candidates and employees.

You may want to check your definitions to apply this disclosure. Massachusetts law defines an investigative consumer report to help you know when it’s needed. Generally, it’s how you’re looking for information on the candidate or employee. If it comes from “personal interviews with neighbors, friends, or associates,” it could be an investigative consumer report.

If a candidate or employee lives and works in Massachusetts, it may be time to present them with this disclosure. What should that disclosure include? Let’s see what the state law indicates.

Pre-background check disclosure requirements

Maybe you’re nodding along already. Who you’re hiring and what information you’re checking is ticking these requirements. To create your disclosure, you need to know what to include. Here are some requirements to address before ordering a background report. Job candidates and employees need to hear specific language (in writing!) from you, including:

  • Clearly and accurately disclose that “an investigative consumer report commonly includes information as to [their] character, general reputation, personal characteristics, and mode of living.”
  • Provide the “precise nature and scope of the investigation requested.”
  • Inform them of their “right to have a copy of the report upon request.”
  • Obtain written permission from them to obtain the investigative consumer report.

Still not sure where to start? We offer sample compliance documents to our clients to help. Verified Credentials clients can access a sample Massachusetts disclosure to review when creating your own. Simply log into your Verified Credentials Employee account and go to the Resource Library. Take a look at the “Massachusetts Investigative Consumer Report Disclosure.” Download the sample to get started.

Getting started with state-specific background check disclosures

A state-specific disclosure for Massachusetts may apply to you if:

  • You have job candidates or employees that live or work in Massachusetts
  • AND you order background check information obtained via personal interviews (e.g. reference checks and some employment history verifications)

You may want to review your disclosure documents to size up compliance with Massachusetts law. Sitting down with your legal counsel is the best way to double-check that your background screening practices are compliant.

Once you have your disclosure language tied up with your legal counsel, talk to us. We can help you get this in front of job candidates. It’s easy to update language in your candidate portal for background checks (Candidate Verification Center). The online delivery puts your disclosure up on your job candidate’s screen for easy compliance.

Holy Toledo! Salary History Ban Moves into Toledo, Ohio

Protecting job candidates means more laws take their corner on privacy rights. More locations are restricting information about employment experience, including salary history.

As of June 25, 2020, Toledo became the second city in Ohio to adopt a salary history ban.

They join Cincinnati that passed a ban [last year].  The new law means employers generally can’t ask job candidates about compensation during the hiring process.

If you are an employer located in Toledo, the new law may apply to you. It’s not just about where you are located. It’s about where your employees live and work. You may find this law may have implications for your business. For example, if you have over 15 paid employees in Toledo, you may need to pay attention to this new ban.

What the salary history ban says

Generally, the salary history ban restricts requests for compensation details from job candidates. The full text of the law offers complete details on rules and exceptions. Here are some highlights from Toledo’s salary history ban:

  • In general, employers cannot:
    • Ask a job candidate about their salary history.
    • Screen job candidate based on their current or prior wages, benefits, or other compensation.
    • Use a job candidate’s salary history to define job offers (salary, benefits, or other compensation) or negotiate job contracts.
    • Refuse to hire or discriminate against a job candidate for not disclosing their salary history.
  • Employers shall disclose the pay scale for a position to a job candidate, at the job candidate’s request, when they present a conditional job offer.
  • This law doesn’t mean employers can’t engage in discussions about job candidate’s pay expectations. After all, salary, benefits, and other compensation are normal parts of job offer negotiations. Employers just can’t ask about salary history.

What to do next

Laws like salary history bans are a serious matter. If you are not sure how or if this law applies to you, your legal counsel may provide the best advice. Not complying could be an unlawful discriminatory practice. There are risks of high costs if you fail to comply. Under the ban, job candidates have a private cause of action to seek compensation for violations.

Blocking in Memphis: Ban the Box Comes to Shelby County, Tennessee

Music landmarks and legends found a home in Memphis. It’s home to the biggest movements in blues, soul, and rock ‘n’ roll. Now the second biggest city in Tennessee is part of a big movement in background screening.

Shelby County, Tennessee, where Memphis is located, has joined the ban the box movement.

The new law blocks public-sector employers from reviewing job candidate’s criminal history before the job offer.

When does the law take affect?

On July 27, 2020, the Shelby County Board of Commissioners passed the ordinance. The ban-the-box restrictions apply to Shelby County government jobs. The ordinance takes effect on August 11, 2020.

What does the Shelby County law say?

Want to get the full details? View Ordinance Number 513 ››

The Shelby County ordinance provides guidance and restrictions on how and when to use criminal history, with some exceptions. Here is a roundup of some of the main points for Shelby County government employers:

Pre-background check:

  • Do not ask for criminal history before a contingent job offer is extended.
  • Give candidates documentation. Job candidates should see a conditional offer letter of employment, notice of rights under the ordinance, and a request for authorization to conduct a background check prior to initiating a background check.
  • Include specific information regarding background checks in job postings.

Post-background check:

  • Limit what criminal records you look at in a criminal background check. Arrests without conviction, expunged records, juvenile history, and more should not be considered.
  • Focus on criminal convictions that apply to the job duties only or automatically bar employment according to other laws.
  • Provide the applicant with a specific notice if the job candidate’s criminal history may hold back hiring.
  • Leave room for the whole story. If a job candidate made amends from past conviction, they may provide evidence to support their fitness to work. That open position should be held for them until a final hiring decision is made.

The ordinance specifically bans the box for government jobs with Shelby County. But not so fast. The ordinance signals to third parties associated with the county, too. In it, they suggest government offices may want to work with partners that have similar hiring practices in place. Any vendor, contractor, or supplier to Shelby County may want to review their hiring procedures. The county “prefers” working with partners that have similar “conviction history policies, practices, and standards” in place. This includes a recommendation that vendor job applications not contain a “box” about prior criminal convictions (unless otherwise required by law).

If you do business with Shelby County, it may be a good idea to discuss the new ordinance with your legal counsel to determine how the ordinance may impact you.

DHS Announces Extended I-9 Compliance Flexibility

The Department of Homeland Security (“DHS”) recently issued a news release announcing a 30-day extension in I-9 compliance flexibility, to July 19, 2020, due to continued precautions related to COVID-19.

DHS made the initial I-9 compliance flexibility announcement on March 20, 2020 (available here).  In its statement, DHS recognized the difficulty employers might have attempting to physically review their employee’s identity and employment authorization documents in the employee’s presence due to COVID-19 related remote-work and social distancing guidelines.  DHS stated that it would “exercise discretion to defer the physical presence requirements associated with [Form I-9].”

According to the initial announcement, employers engaging employees in remote-work have some temporary flexibility in I-9 compliance:

  • Employers can inspect their employee’s documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents within three business days.
  • Once the employer’s normal operations resume, employees onboarded using remote verification must report to the employer within three business days to verify the employee’s identity and employment eligibility documentation in-person.

Even though DHS is granting some flexibility in I-9 compliance, there are some limitations to keep in mind:

  • Employers that avail themselves of the remote inspection option must provide written documentation of their remote onboarding and telework policy for each employee.
  • DHS has listed specific language for what should be included on the I-9 form when in-person physical inspection of documents has been delayed. Employers that take advantage of the I-9 compliance flexibility may want to review the DHS announcement carefully to ensure that their I-9 forms continue to meet DHS requirements.
  • This option is only available for employers and workplaces that are operating remotely. If employees are physically present at a work location, no exceptions are allowed for in-person verification of identity and employment eligibility documentation.

With the latest extension announced by DHS, the expiration date for these accommodations is now July 19, 2020.  While this announcement may help employers practice social distancing, it’s always a good idea to talk with your legal counsel before taking advantage of the I-9 compliance flexibility rules to make sure you stay compliant.

Virginia “Bans the Box” (For Certain Offenses)

We have highlighted several new ban the box laws at the local, state, and federal level.  Another month brings a new ban the box law for you to consider.

On May 21, 2020, the Governor of Virginia signed a law that bans the box for certain marijuana-related offenses.

To read the new law, click here.

The new law amends Virginia’s simple marijuana possession statute (Va. Code § 18.2-250.1).  As amended, the simple possession of marijuana in Virginia, while still unlawful without a prescription, is no longer subject to a criminal penalty.  Instead, a person who violates Virginia’s simple marijuana possession law has engaged in a civil offense and is subject to a civil penalty and a fine of no more than $25.  Note that per Virginia law, marijuana possession with the intent to sell, give, or distribute is still a criminal offense. Still, there is a rebuttable presumption in the law that a person who possesses no more than one ounce of marijuana possesses it for personal use.

Because of the changes to Virginia’s simple marijuana possession law, reporting and asking for information regarding this type of offense has also been changed.  According to the new law:

  • “Records relating to the arrest, criminal charge, or conviction of a person for a violation of [Virginia’s simple marijuana possession law]… shall not be open for public inspection or otherwise disclosed,” with some exceptions.
  • “An employer or educational institution shall not, in any application, interview, or otherwise, require an applicant for employment or admission to disclose any information concerning any arrest, criminal charge, or conviction against him when the record relating to such arrest, criminal charge, or conviction against him when the record relating to such arrest, criminal charge, or conviction is not open for public inspection pursuant to [the new law].”
  • “An applicant need not, in answer to any question concerning any arrest, criminal charge, or conviction, include a reference to or information concerning any arrest, criminal charge or conviction when the record relating to such arrest, criminal charge, or conviction is not open for public inspection pursuant to [the new law].”

Take note, an employer or educational institution that willfully violates the law’s prohibition on asking applicants about certain marijuana-related offenses can be found guilty of a Class 1 misdemeanor for each violation.

The new law is set to take effect on July 1, 2020.  Because violations of this new ban the box law may result in criminal penalties for employers and educational institutions, it may be a good idea to discuss the law with your legal advisor to determine how, or if, this new law might impact you.

“Credit Checks” in California? There’s (Another) Disclosure for That!

Last month we discussed California’s Investigative Consumer Reporting Agencies Act (“ICRAA”) and the state-specific disclosures required by the ICRAA if you obtain “investigative consumer reports” as defined by California law on applicants or employees who live or work in California (available here).

However, the California-specific requirements don’t end with the ICRAA.

If you obtain background reports on your applicants or employees who have a mailing address in California bearing on their creditworthiness, credit standing, or credit capacity (known as “consumer credit reports” in California), you may have additional disclosure requirements as outlined in the California Consumer Credit Reporting Agencies Act (“CCRA”).

Before requesting your report, you must:

  • Provide written notice to the applicant or employee that a “consumer credit report” will be used for employment purposes.
  • Identify in the notice the specific basis for the use of the report.
    • Insider Tip: California law strictly limits the particular grounds for the use of a “consumer credit report,” only allowing an employer to use it for very specific positions, as detailed in California Labor Code § 1024.5. Even if you may have a “permissible purpose”, as those terms are defined by the Fair Credit Reporting Act (“FCRA”) or even the ICRAA, it may not be valid for a “consumer credit report” under the CCRA.  Double-check that you have a specific basis for using a consumer credit report under the CCRA before ordering background reports on your California applicants and employees that bear on their creditworthiness, credit standing, or credit capacity!
  • Identify in the notice the source of the report.
  • Provide your applicant or employee with a box in the notice that they can check off to receive a copy of the report.
    • Insider Tip: If your applicant or employee checks this box, be sure to let your background check partner know so they can provide your applicant or employee with a copy of their report. Note – Verified Credentials’ clients don’t need to notify us if their notice is in their Candidate Verification Center. We will automatically send the applicant or employee a copy of the report if the box is checked.

For a sample CCRA notice to review in creating your own, take a look at the “California Consumer Credit Report Disclosure” in Verified Credentials’ Resource Library.

Laws surrounding background reports can be complex, especially in California!  If you have applicants or employees that have mailing addresses in California, and you are thinking about obtaining background reports on them, you may want to check with your legal advisor to make sure that your disclosures comply with California law.

Waterloo, Iowa Facing Lawsuit Over “Ban the Box”

We previously discussed the Ban the Box ordinance recently passed in Waterloo, Iowa.

On January 2, 2020, the Iowa Association of Business and Industry (IABI) filed a lawsuit against the city of Waterloo, alleging that the Waterloo ordinance violates Iowa state law.

The IABI, in its petition, specifically states that the ordinance is a violation of Iowa Code section 364.3(12)(a).  According to the court documents filed by the IABI, Iowa Code section 364.3(12)(a) “provides that ‘a city shall not adopt’ any ordinance ‘providing any terms or conditions of employment that exceed or conflict with the requirements of federal or state law… relating to hiring practices… or other terms or conditions of employment.’”

The petition goes on to say that “the ordinance violates Iowa Code section 364.3(12)(a), as it governs hiring practices and terms and conditions of employment in a manner that exceeds or conflicts with federal or state law.”

The IABI is requesting that the Court prohibit the city of Waterloo from enforcing the ordinance, as well as declare that the ordinance violates both the Iowa Code and the Iowa Constitution.

To read the full text of the petition filed in Black Hawk County, Iowa, click here.

According to a press release issued by the IABI, “the lawsuit follows a letter that the IABI submitted to the city during the discussion phase stating the violation of state law and requesting they reconsider the ordinance.”  The letter sent to the city council is available as an addendum in the petition linked above.

Litigation is still ongoing.  Verified Credentials will continue to monitor the Ban the Box ordinance in Waterloo, as well as the ensuing lawsuit, and will attempt to provide updates as they become available.

Federal “Fair Chance Act” Enacted

We have previously covered “Ban the Box” laws in multiple jurisdictions, including both statewide laws, such as the law in Colorado, and municipal ordinances, including Waterloo, Iowa, Columbia, South Carolina, and Saint Louis, Missouri.

The federal government has recently passed legislation implementing its own Ban the Box style law. The federal “Fair Chance Act” was signed into law on December 20, 2019 as part of the National Defense Authorization Act for Fiscal Year 2020.

The Fair Chance Act prohibits, with some exceptions, federal executive agencies from inquiring about an applicant’s criminal history record information prior to making a conditional offer of employment i.e. an employment offer conditioned on the results of a criminal history inquiry, stating that:

[A]n employee of an agency may not request, in oral or written form (including through the Declaration for Federal Employment (Office of Personnel Management Optional Form 306) or any similar successor form, the USAJOBS internet website, or any other electronic means) that an applicant for an appointment to a position in the civil service disclose criminal history record information regarding the applicant before the appointing authority extends a conditional offer to the applicant.

This prohibition extends to all legislative and judicial agencies as well as executive agencies.

The Fair Chance Act also extends the restrictions on criminal history record information inquiries to federal contractors, with some exceptions. According to the act,

[A]s a condition of receiving a Federal contract and receiving payments under such contract … the contractor may not verbally, or through written form, request the disclosure of criminal history record information regarding an applicant for a position related to work under such contract before the contractor extends a conditional offer to the applicant.

To read the full text of the Fair Chance Act, click here. The Fair Chance Act starts at Section 1121 on page 408.

The Fair Chance Act will become effective in December, 2021. When it becomes effective, the Fair Chance Act will only apply to federal agencies as outlined above and entities that have contracts with the federal government. You may want to review this proposed law with your legal counsel to determine if it applies to you.

Salary History Ban Coming to Cincinnati

Starting in 2020, Cincinnati, Ohio will join jurisdictions such as New York and New Jersey in adopting a “Salary History Ban”. Salary History Bans typically restrict when, or if, an employer can ask an applicant about the applicant’s compensation history.

Under the Cincinnati Salary History Ban, it is unlawful (with some exceptions) for employers to:

  • Inquire about the salary history of an applicant for employment; or
    Screen job applicants based on their current or prior wages, benefits, other compensation, or salary histories, including requiring that an applicant’s prior wages, benefits, other compensation or salary history satisfy minimum or maximum criteria; or
  • Rely on the salary history of an applicant in deciding whether to offer employment to an applicant, or in determining the salary, benefits, or other compensation for such applicant during the hiring process, including the negotiation of an employment contract; or
  • Refuse to hire or otherwise disfavor, injure, or retaliate against an applicant for not disclosing his or her salary history to an employer.

The ordinance also requires employers, upon a reasonable request, to provide the pay scale for a position to an applicant who has been given a conditional offer of employment.

Even though inquiries about salary history may be restricted, employers may still engage in discussion with the applicant about their expectations with respect to salary, benefits, and other compensation, including but not limited to unvested equity or deferred compensation that an applicant would forfeit or have cancelled by virtue of the applicant’s resignation from their current employer.

The full text of the Salary History Ban can be found in the Cincinnati Code of Ordinances.

This ordinance will be effective beginning in April, 2020. This gives you some time to examine this new law with your legal advisors and determine how it may impact you. Verified Credentials will continue to monitor and provide updates as they become available.

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