Here’s a sneak peek at this week’s Compliance News Flash from AGG:

  • The California Supreme Court ruled on the constitutionality of the Investigative Consumer Reporting Agencies Act, which is relevant to California employers and their background screening process.
  • Still in California, a new law on its way to the Governor for signature will require software updates for certain consumer reporting agencies.
  • Employers note for purposes of the Form I-9 that the federal government has again auto-extended the work authorization period for Salvadorans and Haitians under the Temporary Protected Status program.
  • Another write-up about the new notice requirement under the Fair Credit Reporting Act related to security freezes.

Click here to read it.

California is on a roll with new employment-related laws effective January 1, 2018. The latest relates to salary history disclosures by job applicants. There is essentially a complete prohibition on an employer, either orally or in writing, personally or through an agent, seeking salary history information, including compensation and benefits, about an applicant for employment.  This applies to all employers (private/public) and the only exception is publically available salary history information. Background screeners and employers take note and check out section 432.3 of California’s Labor Code.

Another new law effective at the start of the year relates to immigration worksite enforcement and what employers cannot do and must do if they are the subject of a visit by immigration agents such as Immigration and Customs Enforcement (ICE) or the subject of an ICE investigation into their employment eligibility verification practices related to their Forms I-9.  Read more in this blog posting of mine.

In California, individuals now have a private right of action to bring a claim against an employer who uses the E-Verify program for pre-screening purposes.  They also have a private right of action if an employer does not provide them with the required notices as part of the Further Action Notice (FAN) or Tentative Notice Confirmation (TNC) process.  These are now considered unlawful employment practices under California’s Labor Code.

E-Verify is the electronic employment eligibility verification program maintained by U.S. Citizenship and Immigration Services (USCIS).  It complements the Form I-9, as the employer needs to input information from the Form I-9 into the E-Verify system when creating a case to determine employment eligibility.

Currently, an employer using E-Verify cannot use the program to pre-screen employees to determine if they are employment authorized prior to hiring them. Check pages 8 and 82 of the E-Verify User Manual which states that “Pre-screening [is] the prohibited practice of creating a case in E-Verify before a job offer has been accepted.”   In addition, an employer using the E-Verify system must provide any notices generated as a result of a FAN or TNC to the individual.  To read more about employers obligation to provide E-Verify generated notices such as the TNC, read the E-Verify Memorandum of Understanding  or on USCIS’ website.

Back to California and AB-622 Employment: E-Verify system: unlawful business practices.  The law added Section 2814 to the California Labor Code.  AB-622 was signed by the Governor in October of last year.  In California, what now constitutes an unlawful employment practice has been expanded to include pre-screening of job candidates through use of the E-Verify system and not providing E-Verify generated notices specific to an individual’s E-Verify case.  This means that individuals now have a private right of action, which they can enforce in state court.  And it can result in a civil penalty up to $10,000 for each violation for the employer who is found to have engaged in an unlawful employment practice.

Bottom line — do not use the E-Verify system to pre-screen job candidates prior to hiring them and make sure you provide them with any of the notices generated by the E-Verify system, such as the TNC.

An appeals court in California recently held that California’s Investigative Consumer Reporting Agencies Act (ICRAA) is not unconstitutionally vague. (Connor v. First Student, Inc., et al., Cal. Court of Appeal, Second Appellate District, Division Four, B256075, B256077 (8/12/15)).

The court disagreed with the analysis in Ortiz v. Lyon Management Group (appeals court held that ICRAA was unconstitutionally vague as applied to tenant screening reports containing eviction records because such information relates to both creditworthiness and character information and ICRAA and CCRAA do not provide adequate notice of which law is applicable if information can be categorized as both character information and creditworthiness information).   In reversing the judgment of the lower court in Connor, the appellate court stated, “We disagree with the analysis in Ortiz….  There is nothing in either the ICRAA or the CCRAA that precludes application of both acts to information that relates to both character and creditworthiness.  Therefore, we conclude that ICRAA is not unconstitutionally vague as applied to such information.”

The Connor case involved employment-related background checks. Connor, a bus driver, alleged that the notice she received related to the background investigation did not contain the requisite language required by ICRAA and that her employer did not obtain her written consent.

The Connor decision follows a string of cases in which California courts held that ICRAA is unconstitutionally vague, including in Trujillo v. First American Registry, Ortiz v. Lyon Management Group, Moran v. The Screening Pros, and Roe v. LexisNexis Risk Solutions.