Message from the Editor:
Welcome to another edition of ‘Inside Background Screening’ our new newsletter. Our goal is to bring to you cutting edge news and information about what is happening in the background screening world to help keep you informed and to position you to make the best possible hiring decisions.
We hope you enjoy ‘Inside Background Screening’ and that you will share your interest and thoughts with us.
Lorenzo Lorenzo Pugliano CEO
Lpugliano@nsshire.com
EMPLOYMENT SCREENING
Ugly Attack on Congress: Employers Turn to Social Media Background Checks
Employers across the nation are taking a closer look at their employees following the January 6 attack on the Capitol building in Washington, D.C. Chicago-area data company Congensia terminated its CEO after they determined he participated in the riots and Maryland-based direct marketing company Navistar terminated one of their employees after he was photographed and his company ID was clearly displayed as he entered halls of congress. The list goes on. These individuals have a right to their civil liberties and political preferences, but not when it turns into violence. Employers are finding it more important now than ever to check out prospective candidates and employees’ online activity, but they should be mindful of legislation like the Fair Credit Reporting Act (FCRA) and Equal Employment Opportunity Commission (EEOC). Nothing can replace the traditional background check, but reviewing online activity can help mitigate risk.
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NYC Adds Protections for Employees with Criminal Arrests or Convictions During Employment
The New York City Council has passed amendments to the city’s Fair Chance Act, adding new protections for employees with arrests or convictions during employment. The Fair Chance Act not only affects hiring decisions, but also protects employees convicted during employment. The amendments, effective July 28, 2021, also add new protections for employees with pending arrests or accusations of criminal wrongdoing. Employers must consider the “fair chance factors” to decide whether adverse action may be taken either because there was a direct relationship between the alleged wrongdoing and the job or employment would involve an unreasonable risk to property or people’s safety. Before an employer can take any adverse employment action against a current employee based on a criminal conviction or pending arrest, several factors must be considered.
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LEGAL ISSUES
Negligent Hiring and Negligent Retention Claims Following a Truck Accident
When it comes to personal injury cases, the accident victim has just one chance to bring their claim – there are no second chances. In this type of law, liability is primarily based on the theory of negligence. A negligent hiring claim argues that an employer was negligent for hiring a truck driver because the employer should have known that the driver posed a risk to the public, while a negligent retention claim argues that the employer learned of the concerning information after the employee was hired. Either way, these claims argue that an employer’s negligence was, at least in part, responsible for an accident victim’s injuries, but in order to be successful, the following facts must be established: the person responsible for the accident victim’s injury was employed by the defendant employ- er; the employee was incompetent; the defendant employer knew of the employee’s incompetence; the employee’s negligence caused the accident victim’s injuries; and the employer’s negligence in hiring (or retaining) the employee was the proximate cause of the accident victim’s injuries.
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Maryland’s Montgomery County Amends, Expands Its ‘Ban-the-Box’ Law
An amendment has been made to Maryland’s Montgomery County ban-the-box legislation that increases restrictions on employers during the hiring process.
Effective February 19, 2021, employers with at least one employee (not limited to full-timers) may not require a job applicant to disclose (or ask a job applicant or others) whether the applicant has an arrest record or conviction record or has been accused of a crime, or conduct a criminal record check on the applicant before a conditional offer of employment, unless the employer is covered by an applicable exemption under the law. In addition, the Amendment provides that at no time can an employer require an applicant to disclose whether the applicant has been arrested, or has an arrest record, for a matter that did not result in a conviction. Other conditions also apply and, under the ordinance, employers (except the County) also are subject to civil penalties for violations of up to $1,000 for each violation.
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DRUG SCREENING
New Jersey’s Legalization of Recreational Cannabis Use Includes Critical Employee Protections, But Leaves Many Questions Unanswered
The New Jersey Legislature has passed the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA), removing marijuana as a Schedule 1 drug and legalizing personal use of cannabis for adults over the age of 21. The state is the first to explicitly protect employees who engage in off-work marijuana use from adverse employment action taken on the basis of that use, and to limit an employer’s ability to act on the basis of a positive marijuana test after employment has started. The existing New Jersey Compassionate Use Medical Marijuana Act (CUMMA) requires employers to engage in an interactive process to reasonably accommodate a qualiying employee’s use of medical cannabis off-site and off-hours. Under the new legislation, employers can no longer take adverse action against an employee solely because an individual has used, or not used, a cannabis product off duty, regardless of whether such use is medically prescribed or recreational. Although regulations and guidance are still anticipated, employers are advised to update their drug use and testing policies to account for the new protections.
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Pennsylvania Medical Marijuana User May Proceed With Disability Discrimination and Retaliation Claims
An employee was terminated after testing positive for marijuana on a return-to-duty drug test. Although she had a medical marijuana card, it was expired at the time she tested positive. The card was renewed and a doctor’s note was provided. A federal court in Pennsylvania overseeing Hudnell v. Jefferson University Hospitals, Inc., held that the medical marijuana user’s claims for disability discrimination and retaliation were sufficiently alleged to survive the employer’s motion to dismiss.
The case highlights the fact that there is a fine line when it comes to reasonable requests and when it comes to medical marijuana use, employers may face disability discrimination and retaliation claims.
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Atlanta Mayor Suspends Pre-Employment Physical Exams, Drug Screenings, For Non-Safety Sensitive Jobs
Atlanta Mayor Keisha Lance Bottoms has issued an Executive Order suspending pre-employment physical examinations and drug screening requirements for prospective City employees in non-safety sensitive positions. The Order, which is designed to address systemic discrimination against communities of color that are disproportionately affected by underlying health conditions, also grants the Commissioner of the Department of Human Resources the authority to administratively establish requirements for pre-employment physical examinations and drug testing for safety sensitive positions. The Commissioner also may designate certain employment classifications, which affect safety and/or security as safety sensitive positions.
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Construction Industry’s Emerging Best Practices for Navigating the Haze of Marijuana Legalization
With marijuana medically legal in 34 states and two territories and for recreational use in 15 states, Washington, D.C., and two territories, the construction industry has been left with plenty of questions about how to maintain a workplace that is safe for all workers. Best practices have emerged in several categories, including employment policies and procedures, safety sensitive position designations, dealing with medical marijuana in the workplace, and drug testing for marijuana in the workplace. A few noteworthy ones? Treat marijuana the same as alcohol or prescription drugs when not working under a federal contract and when in a state that has legalized marijuana; designate safety sensitive positions in writing and make sure that job descriptions reflect how impairment would pose a safety risk; be aware of states who are or will be legalizing medical and recreational use of marijuana in the future; and know that drug tests are not yet a reliable source to establish whether an employee is under the influence of marijuana.
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BIOMETRIC ISSUES
FTC Declares Facial Recognition Surveillance Tech Dangerous, Warns Against Federal Privacy Pre-Emption
The United States Federal Trade Commission (FTC) has issued a proposed settlement with Paravision, which Law Street reports to be its first focused on misuse of the biometric technology, and taking a position against federal privacy laws pre-empting existing state legislation. According to a tweet posted by FTC Commissioner Rohit Chopra, “today’s facial recognition surveillance technologies are discriminatory and dangerous” and his statement about the complaint against Paravision says its use of photos uploaded to the Ever app to train its face biometric algorithms says lobbyists in Washington are attempting “to delete state data protection laws.” The FTC has ordered Paravision to “delete the facial recognition technologies enhanced by any improperly obtained photos,” as well as all photos and videos of Ever users who deactivated their accounts.
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Facial Recognition and Other Biometrics Targeted in Data Privacy Legislation, But What Will Feds Do?
A new bill, The Washington Privacy Act (SB5062), which was sent to the state’s senate, addresses geolocation data and certain biographic characteristics, as well as the use of biometrics for ad targeting. The new bill places enforcement of the privacy measures with the state attorney general and also directs the state priva- cy office and attorney general to consider requiring companies to honor online opt
-out requests submitted through web browsers. A similar ordinance was present- ed by Minneapolis police that would ban the use of facial recognition by Minneap- olis Police, but not outside law enforcement agencies operating in the city and in Utah, a senate committee unanimously approved a bill to regulate law enforce- ment use of facial recognition. There is disagreement between Republicans and Democrats on whether national data privacy legislation should pre-empt state laws, but this may not prevent the passage of new laws with the latter in control of all three legislative branches of the government.
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FTC Requires App Developer to Obtain Users’ Express Consent for Use of Facial Recognition
Everalbum, developer of the photo storage application Ever, has agreed to a Fed- eral Trade Commission (FTC) settlement that will require the business to 1. Ob- tain users’ express consent before using facial recognition technology on users’ photos and videos, 2. Delete or destroy all facial recognition data collected from users who have not provided consent, 3. Delete and destroy the photos and vide- os of deactivated accounts and 4. Delete models and algorithms that it developed using the photos and videos uploaded by users. Andrew Smith, Director of the FTC Bureau of Consumer Protection, stated that the FTC ensures that “companies keep their promises to customers about how they use and handle biometric data,” making it “a high priority for the FTC.”
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DATA PROTECTION & PRIVACY
California Privacy Rights Act Passes: Five Tips to Help Companies Prepare for California’s New, New Thing!
Although the California Privacy Rights Act (CPRA) does not repeal the California Consumer Privacy Act (CCPA), it does change and augment it in several ways. The good news is, the CPRA doesn’t take effect until January 1, 2023, and the threshold has been raised to favor small-medium businesses, time has been ex- tended for employee and business-to-business information, and the CPRA still limits its private right of action for claims related to data breaches only. Employers are advised to: reassess the organization’s data sharing and marketing strategies in light of the CPRA’s changed definitions regarding data “sales” and “sharing;” inventory and rationalize “sensitive personal information” collected by the organization to meet new standards; prepare for additional and expanded data subject rights; and prepare to welcome new policymakers and enforcers.
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Disclaimer: All information presented is for information purposes only and is not intended to provide professional or legal advice regarding actions to take in any situation. Nationwide Screening Services makes no representations for any products or services that are mentioned and accepts no responsibility for any actions or consequences taken without the guidance of a licensed attorney or professional consultant.
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