Category Archives: Background Checks

NEW LAW: Suffolk County, New York Bans Salary History Inquiries

New York’s Suffolk County recently passed a county ordinance prohibiting employers from inquiring into an applicant’s salary history as a part of the hiring process.

Under this new law, which goes into effect on June 30, 2019, employers are prohibited from

  • Inquiring about a job applicant’s wage or salary history, including but not limited to, compensation and benefits.
    • “to inquire” means to ask an applicant or former employer orally, or in writing, or otherwise or to conduct a search of publicly available records or reports.
  • Relying on the salary history of an applicant for employment in determining the wage or salary amount for such applicant at any stage in the employment process, including at offer or contract.

By passing this new law, Suffolk County becomes the fourth locality in New York State to enact a salary history ban law (joining New York City, Westchester County, and Albany County).  To date, New York State has NOT enacted a statewide salary history ban law.

It is recommended that employers in Suffolk County verify that all employment application materials are updated to remove any requests for salary history – including job applications and job interview scripts.  In addition, all employees who are involved in the hiring process are trained about the new requirement and informed that they are not allowed to inquire into applicant’s salary history.

NEW LAW: Connecticut Employers, Remember That The New Pay Equity Law Prohibits Salary History Inquiries

On January 1, 2019, Connecticut’s new pay equity law went into effect.  Under this new law, Connecticut employers are prohibited from inquiring into a prospective employee’s salary/wage history.  This includes, but is not limited to:

  • Including inquiries about salary history on an employment application;
  • Directly asking a candidate for employment about his/her salary history during the interview process;
  • Directly asking a candidate’s former employer about the candidate’s salary history; and
  • Using a third party to inquire into an applicant’s salary history.

Employers are still able to inquire about components of an applicant’s former compensation structure (e.g. retirement benefits, stock option plans), but the employer cannot ask about the value of the individual components. Continue reading NEW LAW: Connecticut Employers, Remember That The New Pay Equity Law Prohibits Salary History Inquiries

NEW LAW: California Amends Its Criminal History Inquiry Law

California Governor Jerry Brown recently signed  SB 1412 into law.  This new law, which goes into effect on January 1, 2019, amends California Labor Code section 432.7, which limits the information an employer may ask a job applicant about their criminal history.

Under the current version of California Labor Code section 432.7, employers are prohibited from asking a job applicant to disclose:

  • information concerning arrests that did not result in a conviction,
  • information concerning a referral to pretrial or posttrial diversion programs,
  • convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law, or
  • information concerning or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law.

Continue reading NEW LAW: California Amends Its Criminal History Inquiry Law

NEW FORM – Federal Consumer Financial Protection Bureau Releases New Model FCRA Summary of Rights

On September 12, 2018, the federal Consumer Financial Protection Bureau issued new versions of the “A Summary of Your Rights Under the Fair Credit Reporting Act” disclosure form in both English and Spanish.  Under the Fair Credit Reporting Act, employers and background check companies are required to provide the disclosure form to employees and job applicants at certain times during the background check process.

Employers are required to start using this form no later than September 21, 2018.  In addition to using this new form, employers are  required to provide the applicant/employee with a notice regarding their new security freeze rights available under the Economic Growth, Regulatory Relief, and Consumer Protection Act.  This notice is included in the new form.

It is recommended that all employers update their forms prior to September 21, 2018, to avoid any gaps in compliance.

NEW CASE: California Employers Must Comply With Strictest Background Check Law

In a recent decision (Connor vs. First Student, Inc.), the California Supreme Court held that when conducting a pre-employment background check, California employers are required to comply with the stricter of the requirements set forth in the Investigative Consumer Reporting Agencies Act (ICRAA) and the Consumer Credit Reporting Agencies Act (CCRAA).

As background, the ICRAA covers background checks in which information on a consumer’s “character, general reputation, personal characteristics, or mode of living” is obtained through any means. Among other things, ICRAA requires the person procuring the report to certify that they made certain required disclosures, and that the consumer gave written authorization for the report’s procurement.  The Consumer Credit Reporting Agencies Act (CCRAA), on the other hand, covers information “bearing on a consumer’s credit worthiness, credit standing, or credit capacity,” and does not have a written authorization requirement.

In this case, a group of employees filed a class action lawsuit against their employer and claimed that the employer had violated the California background check law.  In performing its background checks, the employer used a third party and sought criminal records, sex offender registries, address history, driving records, and employment history of potential employees.  The employees claimed that although the background check notice complied with the CCRAA, the company violated the law because its background check notice did not comply with all of the requirements set forth in the ICRAA and the employer failed to obtain employees’ written authorization to conduct the background check, as ICRAA requires. Continue reading NEW CASE: California Employers Must Comply With Strictest Background Check Law

NEW LAW: California Includes Sexual Harassment Claims in Privileged Communication Law

On July 9, California Governor Jerry Brown signed
Assembly Bill 2770 into law.  This new law, which goes into effect on January 1, 2019, extends protections for employers when faced with a defamation claim brought by a former employee — at least in a situation where an employer shares information about a sexual harassment investigation with a potential employer as a part of a reference check.

Many employers dread the “reference check” call because they fear that speaking candidly about the employee could lead to a defamation claim being brought against the company. To avoid this risk, most employers respond to this type of call by only giving the most basic information — (1) confirming that the individual actually worked for the company, (2) confirming the duration of employment, and (3) confirming the position(s) the individual held with the company (remember — providing salary history information is now illegal in California!) The end result — the potential employer does not learn about the problems that existed with this employee and, even worse, a serial harasser could be unleased on another company’s employees. 

This new law is intended to combat this problem and will give California employers some leeway in speaking truthfully about sexual harassment investigations. The new law protects former employers who, in responding to an inquiry, tell a prospective employers that they would not rehire the former employee because the former employee engaged in conduct that violated the employer’s policy prohibiting sexual harassment — provided that the communication is made based on credible evidence and “without malice.” In California, a “malicious statement” is one motivated by hatred or ill will, or that is recklessly made without reasonable grounds for believing that the claim is true. Continue reading NEW LAW: California Includes Sexual Harassment Claims in Privileged Communication Law

NEW REGULATIONS — FEHA Regulations Clarify National Origin Discrimination

On May 17, 2018, the California Fair Employment and Housing Council published new regulations relating to national origin discrimination, which expand the definition of “national origin” and expand the list of prohibited employment practices.  These new regulations go into effect on July 1, 2018 .

National Origin Definition (2 CCR § 11027.1)

Previously, the term “national origin” was not defined under the California Fair Employment and Housing Act.  Instead, it was interpreted to simply mean “the country where a person was born” or “the country from which his or her ancestors came.”

The new regulations now provide a broad definition of the term “national origin,” which  includes the individual’s or ancestors’ actual or perceived:

  1. physical, cultural, or linguistic characteristics associated with a national origin group;
  2. marriage to or association with persons of a national origin group;
  3. tribal affiliation;
  4. membership in or association with an organization identified with or seeking to promote the interests of a national origin group;
  5. attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a national origin group; and
  6. name that is associated with a national origin group.

Continue reading NEW REGULATIONS — FEHA Regulations Clarify National Origin Discrimination

San Francisco Amends “Fair Chance Ordinance” to Expand On California’s Ban-the-Box Law

Recently, the San Francisco Board of Supervisors passed amendments to the city’s 2014 Fair Chance Ordinance (FCO), which will expand upon the State’s “ban the box” initiative by further limiting an employer’s ability to obtain and use information about an applicant’s criminal history.

FCO Amendment

The amendments will go into effect on October 1, 2018 and will affect all employers with five or more employees nationwide that have at least one employee who works on average 8 or more hours per work in San Francisco. This expands on the existing ordinance which was limited to city-based employers with twenty or more employees nationwide.

Expansions to Existing Law

While the majority of the amendments are designed to bring the city’s outdated ordinance into alignment with the State’s new ban-the-box law, one amendment goes further and will prohibit employers from considering any convictions for crimes that have since been decriminalized regardless of when the conviction occurred.  As an example of such decriminalized activity, the amendments specifically reference certain offenses for non-commercial use and cultivation of marijuana that were recently decriminalized under state law. Continue reading San Francisco Amends “Fair Chance Ordinance” to Expand On California’s Ban-the-Box Law

Michigan Invalidates Local Ban-the-Box Laws

On March 26, 2018, Michigan passed an amendment to its Local Government Labor Regulatory Limitation Act that prohibits local government bodies from adopting or enforcing any local policy, resolution, or ordinance regulating information an employer or potential employer may ask an applicant for employment verbally or in writing (so called salary history and ban-the-box laws).

This new amendment comes in response to municipalities such as Detroit and Kalamzoo passing ordinances that prohibit employers from making inquiries into applicants’ salary and criminal histories. Such local ordinances will no longer be enforceable once the law takes effect on June 24, 2018.

In spite of this pro-employer development, Michigan employers should continue to exercise caution in the information they request of job applicants.  Both state and federal law place extensive limitations on the questions employers may ask applicants during the hiring process, including prohibitions on inquiries relating to age, disability, height, weight, marital status, family status, gender, ethnicity, and the list goes on.

NEW LAW: Spokane (WA) Enacts Ban-The-Box Legislation

The Spokane city council recently passed Ordinance No. C-35564 (The Fair Chance Hiring Ordinance), which goes into effect on June 14, 2018.

When this new law goes into effect, Spokane employers can no longer inquire about an applicant’s criminal history until after the applicant has either:

  • participated in an in-person, telephonic, or video interview or
  • received a conditional offer of employment.

In addition, under the new law, Spokane employers will be prohibited from advertising job openings in such a way that excludes individuals with arrest or conviction records.  Specifically, job postings cannot include language like “no felons,” “no criminal background,” or similar language that conveys a message that people with a criminal history are discouraged from applying.  This does not, however, preclude an employer from including in a job posting a requirement that an applicant undergo a criminal background check as a part of the hiring process – provided that the job posting does not state that an arrest or conviction record will automatically eliminate an applicant from consideration for that position.

This new law does not apply to the following Spokane employers:

  • any employer hiring an employee who will have unsupervised access to children or a “vulnerable person;”
  • any law enforcement agency;
  • any position where criminal background checks are specifically permitted or required under state or federal law.

Recommendation for employers

It is recommended that all Spokane employers review the hiring practices to insure compliance with the new laws.  In addition, employers need to provide training to those people involved in the hiring process about the new ban the box requirements, as these requirements impact the interview process. Finally, all Spokane employers should review their job applications and verify that any inquiries regarding criminal history are removed from the application before June 14th.