August 2023 NEWSLETTER

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 NEWS

Louisiana Bill to Expunge Non-Violent Crimes Passes

SB 111, also known as The New Endings and Opportunities Act, has been passed by

Louisiana Legislature. The bill, which is designed to benefit around 1.3 million Louisiana citizens who are currently eligible for expungement of non-violent crimes from their records, emphasizes the need for system upgrades within the state’s Bureau of Criminal Identification and Information System and the Supreme Court Case Management Information System.

Third Time’s the Charm? EU-US Data Privacy Framework Revamped and Reloaded

The European Commission has adopted an adequacy decision for a lawful data transfer from the EU to the USA for the third time. The recent adequacy decision follows an Executive Order of President Biden that introduced new binding safeguards to ensure that data can be accessed by the US intelligence agencies only to the extent necessary and proportionate. It also establishes an independent and impartial redress mechanism to handle and resolve complaints from EU inhabitants concerning the collection of their data for national security purposes. Read more

LEGAL ISSUES

Proposed Bill Would Require Contractor Background Checks, Larger Consumer Payouts

A new bill in Massachusetts would require background checks of contractors in the state and would provide more money for consumers who get ripped off. The bill was in response to the “To Catch a Contractor” investigative series and requires the Office of Consumer Affairs and Business Regulation to perform background checks when contractors register or renew.

Calif. FCRA Ruling Boosts Technical Claim Defense

In Limon v. Circle K Stores Inc., the Fifth Appellate District held the Fair Credit Reporting Act (FCRA) does not confer standing on plaintiffs to sue in California state court, absent any allegation of concrete injury. The decision has shifted the legal landscape for technical FCRA claims brought in the state court in favor of defendants.

Second Circuit Rules Whether Alleged Inaccuracy is ‘Factual’ or ‘Legal’ Does Not Determine if Claim is Actionable Under the FCRA

The U.S. Court of Appeals for the Second Circuit has ruled in Sessa v. Trans Union, LLC,

that a claimed inaccuracy is potentially actionable under the Fair Credit Reporting Act (FCRA) so long as the challenged information is objectively and readily verifiable. In the case, the assignee of the plaintiff’s vehicle lease furnished information to TransUnion that she owned a “balloon payment” at the end of the lease in the amount of the vehicle’s residual value, which was reported on her credit report as a debt, violating the requirement to follow reasonable procedures to assure the maximum possible accuracy of the information contained in a consumer report.

Oregon Passes Comprehensive Privacy Law

Senate Bill 619 has been passed in Oregon, applying to any business that does business in the state and controls or processes the personal information of at least 100,000 Oregon residents or at least 25,000 Oregon residents while deriving at least 25% of its revenue from the sale of personal information.

Texas Data Privacy and Security Act – An Overview

Effective July 1, 2024, the Texas Data Privacy and Security Act (TDPSA) is similar to the state privacy laws in Virginia, Utah, and Iowa, among others, but several notable provisions exist. These include a “small business” carveout, consent to process sensitive data, notices for sale of sensitive personal data, a requirement to recognize the universal opt-out mechanism and a cure period with no sunset.

California Attorney General Announces New CCPA Investigative Sweep of Employers

A new CCPA investigatory sweep announced by the California Attorney General will focus on employee data. Inquiry letters have been sent to “large California employers requesting information on the companies’ compliance with the California Consumer Privacy Act (CCPA) with respect to the personal information of employees and job applicants.” The announcement serves as a reminder that the CCPA’s requirements on employee data are now enforceable by the Attorney General and the new Cal Privacy Protection Agency.

Connecticut Legislature Passes Amendments to the Connecticut Data Privacy Act

Connecticut SB 3 has been passed by the Connecticut legislation, which would amend the Connecticut Data Privacy Act (CTDPA) to include several provisions related to health and minors’ data. The bill imposes several requirements related to health data, children’s data and a few other miscellaneous requirements pertaining to online dating and a new task force.

CPRA Enforcement Delayed Until at Least March 29, 2024

A Superior Court of California judge has delayed enforcement of the California Privacy

Rights Act (CPRA) regulations until March 29, 2024. The decision followed a California Chamber of Commerce lawsuit in which the plaintiff argued that California voters intended for the California Privacy Protection Agency (CPPA) to issue regulations at least one year prior to the enforcement date on July 1, 2022. The regulations were not issued until March 29, 2023.

Delaware General Assembly Passes Personal Data Privacy Act

The Delaware general assembly recently passed the Delaware Personal Data Privacy Act (DPDPA), H.B. 154. The bill is similar to the statutes in Connecticut, Montana and Oregon, with some differences pertaining to scope and exemptions, sensitive data, consumer rights, opt-in consent and enforcement.

Data Privacy Framework Program Launches New Website Enabling U.S. Companies to Participate in Cross-Border Data Transfers

A website has been launched that will enable eligible U.S. companies to self-certify their participation in the EU-U.S. Data Privacy Framework. The Data Privacy Framework (DPF) program website facilitates cross-border transfers of personal data in compliance with European Union law. Companies that participate in the EUU.S. Privacy Shield can use the website right away to receive personal data transfers, but will need to self-certify by Oct. 10.

California Protects Employees Who Use Recreational Cannabis and Limits Drug Tests

California law will begin restricting employers from using traditional drug tests to test for cannabis use in January. The law, which was signed by Gov. Gavin Newsom, prohibits employers from discriminating against applicants and employees based on the person’s use of cannabis off-duty and off-site and an employer-required drug test that reveals nonpsychoactive cannabis metabolites. There are two types of tests that employers still might be able to use.

District of Columbia Cannabis Employment Protections Amendment Act Goes Live July 13

The D.C. Cannabis Employment Protections Amendment Act of 2022 (CEPAA), prohibits employers from taking personnel actions against an individual for cannabis or marijuana use off-premises during non-work hours. They can take action if the employee is designated as safety sensitive, a federal contract or statute prohibits marijuana use, or the employee used or possessed marijuana at the employer’s premises or during work hours.

Failure to Hire Claims Go Up in Smoke for Pot-Using New Jersey Job Applicant

An employer’s motion has been granted to dismiss a putative class action in Zanetich v. Wal-Mart Stores E, Inc. The plaintiff claimed the company violated the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (the CREAMMA) and exhibited common law failure to hire in violation of New Jersey public policy. The employer argued CREAMMA lacks an express private right of action.

FMCSA to Implement Operating Authority Exemption for Providers of Recreational Activities

The Federal Motor Carrier Safety Administration (FMCSA) has shared that it plans to publish new rules to implement a statutory exemption from the interstate for-hire operating authority requirement for certain providers of “recreational activities.” The agency aims to clarify what types of passenger operations implicate other aspects of its regulations.

If You Hire Someone Who Says They Are in a Drug Treatment Program, Don’t Do This …

A federal court recently reinforced the importance of complying with the Americans with Disabilities Act during the hiring process. An employer cannot lawfully refuse to hire a job applicant because they are receiving addiction treatment. The ADA doesn’t prevent employers from testing applicants or employees for current illegal drug use or from making employment decisions based on verifiable results, but it does prevent them from asking applicants about the use of prescription drugs.

Minnesota’s New Recreational Cannabis Law Results in First-Of-Its Kind Drug Testing Scheme

A new law was signed in Minnesota that allows adults 21 and older to use recreational cannabis. Individuals will be protected for its use under the new law, which amends the state’s Consumable Products Act to off-duty use and excludes cannabis from the definition of “drug” in the Drug and Alcohol Testing in the Workplace Act (DATWA).

Impairment Testing vs Drug Testing

Drug screening in the workplace is a critical component to maintaining a safe workplace. There are significant differences between impairment testing and drug testing. Commonly used in occupational settings to ensure the safety of employees, especially in high-risk industries, impairment testing is used to assess an individual’s physical or mental capabilities and determine whether they are impaired or unfit for a specific task or activity. Drug testing, however, is a specific type of testing that is used to detect the presence of drugs or their metabolites in a person’s system. This type of testing indicates recently used drugs. Choosing between the two comes down to the nature of the work, the employee’s history with the company and the laws of the jurisdiction(s) where the company operates.

Bipartisan House Bill Shows Feds May Be Relaxing Stance on Marijuana in Employment Decisions

The federal government is starting to take steps towards softening its stance on marijuana, which may be welcomed news to many considering that the federal government is the largest employer in the United States. On July 27, 2023, Representatives Jamie Raskin (D-MD) and Nancy Mace (R-SC) introduced bipartisan legislation in the U.S. House of Representatives that would allow job applicants who are current or former marijuana users to receive federal security clearances and have access to federal job opportunities.

Justice Department Secures Settlement with Domino’s Pizza Franchisee to Resolve Immigration-Related Discrimination Claims

DOJ has secured a settlement agreement with Treacy Enterprises Inc., owner and operator of several Domino’s Pizza franchises. An investigation began when a lawful permanent resident worker complained that Treacy Enterprises was re- quiring him to provide additional and unnecessary documentation to prove his permission to work instead of accepting the valid documentation he had already

presented. The settlement resolves the DOJ determination that Treacy Enterprises violated the Immigration and Nationality Act (INA).

USCIS Announces New Form I-9, Will Allow Permanent Remote Review for E-Verify Users

An updated Form I-9 will become available Aug. 1, according to an announce-

ment released by the U.S. Department of Homeland Security’s Citizenship and Immigration Services. The agency also published a final rule amending its regulations to permit the secretary of homeland security to authorize “alternative document examination procedures” as an alternative to in-person, physical review by employers.

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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