Happy New Year!

Here are two editions of the AGG Compliance News Flash covering the following topics:

  • E-Verify;
  • California’s Consumer Privacy Act;
  • Ban the box and salary history restrictions in the hiring process;
  • Investigation by the Department of Justice into hiring practices;
  • The Fair Credit Reporting Act and who qualifies as an “employee”; and
  • News about the Consumer Financial Protection Bureau.

Click here for the 12/21 edition of the Compliance News Flash.

Click here for the 1/4 edition of the Compliance News Flash.

Please join me next week for a discussion about what employers need to be aware of regarding pre-employment background checks to ensure you have compliant background screening policies and procedures in place. Some of the topics I will discuss include the Fair Credit Reporting Act, state law regarding restrictions on the use of credit information for employment screening purposes, the EEOC’s guidance on the use of criminal history records, and Fair Chance Hiring laws (aka Ban the Box ordinances).

The webinar is hosted by ClearStar.  Please register by clicking here.

Details: The free webinar is Wednesday, March 15, 2017 from 2:00 PM – 3:00 PM EDT.

New York Attorney General Eric T. Schneiderman recently announced settlements against two major retailers (Big Lots Stores and Marshalls) for violations of Buffalo’s “Ban the Box” ordinance at local stores.  Click here to read the announcement.   In addition, the stores agreed to pay fines of $100,000 (Big Lots) and $95,000 (Marshalls).

State and local Ban the Box laws generally prohibit an employer from inquiring on a job application about a candidate’s criminal history.  That inquiry must generally wait until after a conditional offer of employment.  Buffalo is one of three major cities in New York with such a law on the books (New York City and Rochester are the other two).  Note that each Ban the Box law should be read individually as although there are similarities, there are also nuances to each.

Employers in Buffalo — the Ban the Box law applies to public and private employers with 15+ employees.  It states that you cannot inquire on a job application or prior to an initial interview about criminal history.  In addition, because Buffalo is in the state of New York, Article 23-A of the New York Correction Law also applies, specifically when considering an applicant’s prior criminal convictions in determining suitability for employment.  See Article V: Fair Employment Screening to learn more about this potentially unlawful discriminatory practice in Buffalo.

 

 

Happy New Year!  New year and new blog name — Workforce Compliance Insights.

On December 15, the Office of Personnel Management (OPM) published in the Federal Register a notice listing its priorities.  Under “Suitability” on page 77883 of the Federal Register, OPM states that they will be “proposing modifications to its rules to better ensure that applicants from all segments of society, including those with prior criminal histories, receive a fair opportunity to compete for Federal employment.”  Specifically, the proposed changes would prohibit federal employers from collecting criminal background information “until the best qualified candidates are referred to a hiring manager.”   According to the announcement, “OPM would be providing a mechanism for requesting exceptions when there are legitimate, specific job-related, reasons why agencies may need to disqualify candidates with certain types of adverse history from particular types of positions.”

The proposed rule is in response to President Obama’s recently announced “Rehabilitation and Reintegration for the Formerly Incarcerated” initiatives that call on the U.S. Congress and federal agencies “to pass meaningful criminal justice reform.”  One of President Obama’s long-term initiatives is for the U.S. Congress to pass a national “ban the box” law for federal hiring which would prohibit asking job applicants about criminal history on the job application. In the meantime, President Obama is calling on OPM to modify its requirements related to background checks and the collection of criminal history information.

 

New York City passed a local law to amend its administrative code to prohibit employment discrimination based on one’s arrest record or criminal conviction.  Employers and background screeners take note.  The legislation, the Fair Chance Act, passed City Council earlier this month (6/10/15) and Mayor Bill de Blasio is expected to sign it.  Note too that the law impacts licensing and permits, but for purposes of this blog posting I will only review the sections related to employment screening.  Also, note that it is being dubbed a Ban the Box law, but it is clearly so much more than that as a pure Ban the Box law would simply remove the question about one’s criminal history from the job application.

Who does the law affect and what does it do?

  • It impacts private employers in New York City;
  • It makes it an unlawful discriminatory practice for any “employer, employment agency or agent thereof” (background screeners take note of the agent language) to deny employment or take adverse action against any employee due to criminal convictions;
  • Employers still need to abide, as they do in New York in general, by Article 23-A of the New York Correction Law which essentially requires an employer to tie the criminal history to the particular position through an individualized assessment;
  • It makes it an unlawful discriminatory practice potentially to deny employment or act adversely with respect to an employee based on an arrest;
  • It includes Ban the Box language in that an employer cannot make any inquiry, including on any form of application, regarding arrest or criminal accusation which does not lead to a conviction;
  • Requires a conditional offer of employment before any inquiry or statement related to a pending arrest or criminal conviction record can be made and requires that if an adverse employment action is going to be taken, the individual must be provided a written analysis for the adverse action akin to an individualized assessment (again, reference Article 23-A of New York’s Correction Law for this too);
  • It places restrictions on job advertisements which express limitations on a person’s arrest or criminal history as a condition or bar to employment; and,
  • There are limited exceptions, tied to federal, state or local laws requiring a criminal background check or barring employment based on criminal history.  It also does not apply to law enforcement job applicants.

This is a law that employers should take note given its breadth.  It will take effect 120 days after enactment, meaning it will likely go into effect later this year.  Also, if as an employer or background screener you are not already entirely freaked out (not a legal term) by this, note that there are also restrictions on an employer’s use of credit for employment screening purposes in New York City under the Stop Credit Discrimination in Employment Act.

 

Last week I posted a blog entry about a presentation I was doing at the NAPBS Mid-Year Conference (click here).  If you weren’t able to attend our session or the conference, no worries as the session is available in webinar format thanks to ClearStar.  The title of the free webinar is: Ban the Box Measures and their Impact on Background Screeners and Employers.

My colleague Henry Perlowski and I will be co-presenters.  Henry and I co-chair Arnall Golden Gregory’s Background Screening Practice Group.  The session will cover Ban the Box measures at the state and federal level and the impact of these measures on background screeners and employers who conduct background checks. Topics discussed will include who (public/private) is affected by these measures; the onboarding and job application process; and what, when, and where multistate companies can ask questions about criminal arrests and convictions. The session will cover federal/EEOC guidance and state and local requirements and potential discriminatory concerns associated with considering criminal arrest and conviction records in the hiring process.

Employers — if you have a box on your job application inquiring about the applicant’s criminal history and asking them to answer “yes” or “no” as to whether they have been arrested or convicted of a crime, this webinar is for you.

We hope you will join us.  Click here to register for this webinar which will be held April 29th at 2 pm EST.

If you are attending the NAPBS Mid-Year Legislative and Regulatory Conference in Washington, DC please join me and my colleague Henry Perlowski for our Monday afternoon session — Ban the Box Measures and their Impact on Background Screeners and Employers.

Henry and I co-chair Arnall Golden Gregory’s Background Screening Practice Group.  This session will cover Ban the Box measures at the state and federal level and the impact of these measures on background screeners and employers. Topics discussed will include who (public/private) is affected by these measures; the onboarding and job application process; and what, when, and where multistate companies can ask questions about criminal arrests and convictions. The session will cover federal/EEOC guidance and state and local requirements and potential discriminatory concerns associated with considering criminal arrest and conviction records in the hiring process.

Also, earlier in the day my colleague Kevin Coy will participate on a panel entitled, How “Safe” is the EU U.S. Safe Harbor Program.  Which will focus on the European Union/U.S. Safe Harbor Program which is one means that can be used by background screeners and others to transfer personal information from the European Union and certain other countries to the United States. This session will provide an overview of the Safe Harbor program and its requirements; discuss the Federal Trade Commission’s role in the enforcement of Safe Harbor; and provide an update on the status of negotiations between the EU and the Department of Commerce over the future of the Safe Harbor program.

Join me for a webinar on April 8th related to background screening, during which I will be speaking with others on legal issues related to background screening.  The title of this free webinar is, “Background Checks and the Fair Credit Reporting Act: Key Issues for North American Employers” and is sponsored by the Employment Law Alliance.  Click here to read more about the webinar and to register.   The webinar is geared toward in-house counsel, human resources professionals and corporate executives and business owners.

 

 

Roy Maurer from the Society for Human Resources (SHRM) has written a good article entitled Ban-the-Box Movement Goes Viral which describes Ban the Box measures nationwide.  These measures impact private and public employers during the recruitment and hiring process and therefore must be considered as a part of a company’s overall hiring policies and procedures.  Read the article by clicking here.