Category Archives: Legal

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Nevada Passes Law Banning Pre-Employment Marijuana Testing

Category : Legal

Effective January 1, 2020, employers will be barred from conducting pre-employment drug testing for marijuana in the state of Nevada. Nevada is the first state to enact a law that will restrict employers from utilizing a positive marijuana drug test for employment screening purposes. The law states that it “is unlawful for any employer in this State to fail or refuse to hire a prospective employee because the employee submitted to a screening test and the results of the screening test indicate the presence of marijuana.” This law will apply to all types of currently acceptable drug screening methods: urinalysis, hair, blood, and saliva. The only positions that are exempt from this law will be emergency medical technicians, operators of motor vehicles who are required to be drug tested, firefighters, or other jobs that could adversely affect the safety of others as determined by the employer.

Employers located in Nevada should review their current screening policies and make the appropriate adjustments to stay in compliance. In addition, employers have the right to review their positions as well to see if any of their safety sensitive positions can be exempted. Since Nevada won’t likely be the last state to enact this type of law, CRC will monitor this trend and post updates as they occur. If you have any questions about your current drug testing policies or you’re in the market to work with a accredited background screening agency, please reach out to CRC’s Business Development team and they’ll be happy to assist.


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New Executive Order Restricts NC Public Sector From Viewing Applicants’ Salary Histories

On April 2nd, North Carolina Governor Roy Cooper signed an executive order prohibiting agencies in his administration from reviewing the salary histories of their job applicants. The Governor stated that this restriction was put in place to reduce the pay gap between men and women in NC. Human Resources and Talent Acquisition managers in the public sector have been directed to comply with this law by removing salary history fields from state employment applications as soon as possible.

North Carolina joins 13 other states such as California, Massachusetts, and Oregon in passing laws restricting employers from asking about salary history. While public private sector employers do not have to abide by the new regulations, the passing of this law may inspire more restrictions in the future. CRC will post more updates to this story if they occur.


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Delta Air Lines to Pay $2.3 Million to Settle FCRA Class Action Lawsuit

Delta Airlines has agreed to pay $2.3 Million to settle a class action lawsuit for alleged Fair Credit Reporting Act (FCRA) violations. Approximately 44,000 applicants were affected and are eligible to collect a portion of the settlement. According to the plaintiffs, Delta’s forms contained extraneous and misleading information that could not be understood without an in-depth review of the FCRA. Under the FCRA, employers are required to provide clear and conspicuous disclosure, on a document consisting solely of the disclosure, as well as obtain the consumer’s written authorization prior to procuring the consumer report. This means that any extraneous information such as a release of liability or any other information that detracts from the notice should not be on the disclosure and including it there can result in legal and monetary repercussions.

Cases like this should serve as a reminder to employers to review their FCRA forms, in particular their Disclosure and Authorization forms, as well as their Adverse Action forms. Employers should also leverage their background screening provider for assistance with FCRA compliance. Although background screening providers cannot (and should not) provide legal counsel, experienced and accredited background screening providers can provide end users with valuable tools and resources to help them comply with the Fair Credit Reporting Act and its analogous state laws.

Some resources most accredited screening providers can offer include, but are not limited to, sample template FCRA and state-specific forms, document/process fulfillment and automated compliance tools which are offered directly through the background screener’s online portal. Also, most established background screening providers have relationships with experienced, industry-leading attorneys. If outside counsel is sought, the background screening provider will be able to refer the employer to an attorney that specializes in background screening and the Fair Credit Reporting Act.

Are you interested in leveraging CRC’s compliance team to ensure you’re in FCRA compliance? Feel free to reach out to us for a free consultation!


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Walmart Faces Certified Class Action Lawsuit Over Alleged FCRA Violations

Around 5 million people who applied for a job at Walmart, Inc are now eligible to pursue a class action lawsuit. The plaintiffs are alleging that the company violated the Fair Credit Reporting Act (FCRA) by adding extraneous material to background check notices issued to its applicants. On January 17, 2019, Judge David O. Carter of the U.S. District Court – Central District of California granted a motion for class certification, which will allow for affected plaintiffs to seek monetary reparations. CRC will be monitoring this case and will post updates once they’re received.

This case demonstrates how important it is for organizations to be aware of FCRA requirements and illustrates the costly monetary repercussions that can arise if the law is not followed. In this instance, the plaintiffs are alleging that Walmart’s disclosure and authorization form contained extraneous material that violates the FCRA’s requirement for this form to be clear and conspicuous. The Federal Trade Commission (FTC) offers examples of what shouldn’t be included on the disclosure form such as a release of liability, a certification from the employee that the information is accurate, a requirement for the employee to acknowledge the company’s decisions are non-discriminatory, and authorizations that permit the release of information that the FCRA doesn’t allow to be included with a background report.

Have you reviewed your policies lately to ensure you’re in compliance? CRC offers free compliance resources to our customers, so please reach out to us if you’re unsure if you’re following best practices.


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Amazon Faces Class Action Lawsuit due to Alleged Discrimination During Employment Screening

Category : Legal

Amazon is facing a class action lawsuit from multiple former employees due to the effects of an updated background screening policy. The lawsuit alleges that Amazon terminated each of the complainants based on the results of their background checks without considering how the criminal history information affected the employees’ job responsibilities. Furthermore, the plaintiffs state that Amazon violated federal and state anti-discrimination laws as the policy had a disparate impact on Black and Latino employees.

According to the Equal Employment Opportunity Commission (EEOC), disparate impact is defined as an employer’s neutral policy (ex. Excluding applicants from employment based on certain criminal conduct) having a disproportionate impact on individuals protected under Title VII of the Civil Rights Act of 1964 and that the policy may violate the law if it’s not job related and consistent with business necessity. Assuming that current incarceration rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men. Thus, a program that excludes applicants based solely on the presence of a criminal record without assessing the effects the record has on the position can open organizations to EEOC Title VII enforcement action and litigation.

The EEOC recommends that companies establish a screening process that includes an individualized assessment to minimize the risk of employing a discriminatory policy. An individualized assessment provides the applicant with the opportunity to explain the circumstances pertaining to a criminal offense and also gives the employer the information needed to assess the potential risk that the applicant may present to their organization. If the applicant does not respond to the assessment, the organization would still have met their responsibilities under the EEOC’s guidance. Working with an accredited Consumer Reporting Agency that understands the EEOC and provides helpful resources can help your organization avoid the same pitfalls other companies have experienced.

Click the links below to read more about this story as well as the EEOC and their recommendations regarding the consideration of arrest on conviction records in employment decisions!

https://www.masslive.com/politics/index.ssf/2018/11/black_latino_drivers_sue_amazo.html

https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm#VB9


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NAPBS Pursues Litigation Against Bentonville Arkansas District Court

Category : Legal

The National Association of Professional Background Screeners (NAPBS) is pursuing litigation against the Clerk of the Bentonville Division of the First Judicial District Court of Benton County Arkansas. The NAPBS is alleging that the clerk is using a “gross misinterpretation” of the State’s Supreme Court’s Administrative Order 19 to deny access to publicly available information. The NAPBS is a non-profit trade association that represents over 880 member companies that offer employment, tenant, and volunteer background screening services.

According to the official complaint, the clerk is currently requiring any person seeking individual court records to pay $5,000, complete a “Compiled Records License Agreement” and obtain a compiled records license from the Arkansas Administrative Office of the Courts (AOC). The complaint also states that Administrative Order 19 and the compiled records licenses are only to be used for bulk extracts for a large number of individuals and this does not apply to individual case records. Following this type of regulation would make it extremely difficult for background screening companies to remain in compliance with the state’s request and provide screening services for subjects in this area.

Seven of the ten Arkansas courts that were denying public records have restored access, while only three continue denying the NAPBS’ requests: Bentonville, Craighead County-Lake City, and Craighead County – Jonesboro Division. Whether the NAPBS will consider filing a complain against both Craighead courts remains to be seen.

Click here to review the Arkansas State’s Supreme Court’s Administrative Order 19

Click here to review the official complaint


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Lack of background screening policy leads to legal liability for City of Schenectady, NY

Category : Legal

Having a strong pre-employment screening policy can help prevent possible issues that could arise from an applicant’s background. Recovering from a flawed hiring process isn’t always possible and can lead to negligent hiring litigation like with this recent case in Schenectady, NY. One city inspector was on the sex offender registry and another, who lied about a prior check fraud conviction on his job application, was charged in connection with an apartment building fire that resulted in the tragic loss of 4 lives.  Only after these incidents surfaced did the City Council members pass a resolution requiring mandatory criminal background checks of all potential city employees.

Understanding and implementing an FCRA compliant background screening process in the initial hiring process is crucial to any organization’s long term success. Utilizing a NAPBS accredited background screening company can assist employers to stay compliant with regulations, help with making discerning placement decisions and promote a safe work environment. This can be done through thorough reference checks, education verification services and criminal background checks.

Please see link below to read the full article:

https://www.timesunion.com/news/article/Schenectady-boosts-background-checks-after-hiring-12513678.php#photo-12476303

Please feel free to reach out to CRC’s Customer Care Team if you have any questions on how we can improve your pre-employment screening process!


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Federal Judge Rules that Mick Mulvaney Will Serve as Acting Director of the CFPB

Category : Legal

Richard Cordray resigned from his position as the CFPB director and appointed Leandra English, former CFPB chief of staff, to serve as the acting director until the Senate confirms a nominee. On the same day, President Trump announced that Mulvaney, the White House’s Office of Management and Budget director, would serve in the position instead of English.

English filed a lawsuit to block President Trump’s appointment of Mulvaney. The lawsuit was denied by a Federal judge.  Mulvaney reported to his new position on Monday and announced an immediate 30-day hold on hiring and regulations at CFPB.

What is the Consumer Financial Protection Bureau (CFPB)?

The CFPB is a regulatory agency charged with overseeing financial products and services offered to consumers. The CFPB sole purpose is to ‘protect consumers from unfair, deceptive, or abusive practices and take action against companies that break the law.’ The agency has also taken an active role in monitoring the background screening industry. One of the agency’s most notable actions was from October 2015, when they levied fines and civil penalties exceeding $13 million against two background screening providers for violating the Fair Credit Reporting Act’s requirement for maximum possible accuracy.  Click here for more information on the October 2015 consent decree.


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Class Action Lawsuit Filed Against PepsiCo Subsidiary for Alleged FCRA Violations

Category : Legal

A class action lawsuit was filed against Bottling Group LLC, a subsidiary of Pepsi Co, Inc, by a job applicant, Altareek Grice, who alleges that he was not properly notified when the company procured a consumer report on him.  (Altareek Grice v. Pepsi Beverages Co. et al., Case No. 3:17-­cv-­01842, in the U.S. District Court for the Southern District of California)

Under the Fair Credit Reporting Act (FCRA) employers are required to provide clear and conspicuous disclosure, on a document consisting solely of the disclosure, as well as obtain the consumer’s written authorization prior to procuring the consumer report.  This process is commonly referred to as “Disclosure and Authorization”. If the court finds that there are damages, PepsiCo and its subsidiary could face fines of $100 to $1,000 per violation.

While this case is still in the initial stages of litigation, this should serve as a reminder to employers to review their FCRA forms, in particular their Disclosure and Authorization forms, as well as their Adverse Action forms.

Employers should also leverage their background screening provider for assistance with FCRA compliance.  Although background screening providers cannot (and should not) provide legal counsel, experienced and accredited background screening providers can provide end users with valuable tools and resources to help them comply with the Fair Credit Reporting Act and its analogous state laws.

Examples of these tools and resources include, but are not limited to, sample template FCRA and state-specific forms, document/process fulfillment and automated compliance tools which are offered directly through the background screener’s online portal.  Furthermore, most established background screening providers have relationships with experienced, industry-leading attorneys. If outside counsel is sought, the background screening provider will be able to refer the employer to an attorney that specializes in background screening and the Fair Credit Reporting Act.

For more information on how CRC can help you comply with the Fair Credit Reporting Act, please reach out to our dedicated Customer Care Team at (877) 272-0266!