Category Archives: Background Checks

NEW LAW: Cincinnati Passes Salary History Ban

On March 13, 2019, the  city of Cincinnati passed  Ordinance No 0083-2019 that prohibits employers from asking about or relying on the prior salary history of job applicants.

Under the new ordinance, which goes into effect on March 13, 2020 and applies to employers who have 15+ employees in Cincinnati, employers are prohibited from:

  • Inquiring about the salary history of an applicant for employment
  • Screening job applicants based on their current or prior wages, benefits, other compensation, or salary histories, including requiring that an applicant’s prior wages, benefits, other compensation or salary history satisfy minimum or maximum criteria; or
  • Relying on the salary history of an applicant in deciding whether to offer employment to an applicant, or in determining the salary, benefits, or other compensation for such applicant during the hiring process, including the negotiation of an employment contract; or
  • Refusing to hire or otherwise disfavoring, injuring, or retaliating against an applicant for not disclosing his or her salary history to an employer.

Continue reading NEW LAW: Cincinnati Passes Salary History Ban

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 LAW: Hawaii Passes Pay Transparency and Salary History Ban

On July 5, Hawaii Governor David Ige signed Senate Bill 2351 into law.  With this new law, Hawaii is the 7th state to implement a salary history ban and the 14th state to implement a pay transparency law.  The new law goes into effect on January 1, 2019.

Under the new law, starting January 1st, Hawaii employers will be prohibited from:

  • asking a job applicant about his or her salary history or
  • relying on the applicant’s salary history in determining salary, benefits, or other compensation

during the hiring process or negotiation of an employment contract.

Continue reading NEW LAW: Hawaii Passes Pay Transparency and Salary History Ban

NEW LAW: Oklahoma Voters Approve Ballot Initiative Legalizing Medical Marijuana

On June 26, 2018, Oklahoma voters passed State Question 788, which legalizes marijuana use for medical purposes in Oklahoma.   With the passage of this ballot measure, Oklahoma became the 30th state to pass a medical marijuana law.

The new law goes into effect on July 26, 2018, and does have some implications for Oklahoma employers.  Specifically, the law prohibits employers from taking action against applicants or employees solely based on their status as a medical marijuana license holder or due to a positive drug test result.

While the new law does prohibit employers from discriminating against medical marijuana license holders, employers are permitted to take action against a holder of a medical marijuana license holder if the holders use or possess marijuana while in the holder’s place of employment or during the hours of employment.

Take Home For Employers Continue reading NEW LAW: Oklahoma Voters Approve Ballot Initiative Legalizing Medical Marijuana

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.

Washington Joins the “Ban the Box” Bandwagon

Effective June 6, 2018, Washington employers will no longer be permitted to ask applicants about arrests or convictions, or to receive information through a criminal background check, prior to making a determination as to whether the applicant is otherwise qualified for a position. This new law is known as the Fair Chance Act (the Act).

Prohibited Activities Under the Act

Under the Act, an employer is prohibited from doing any of the following before making an initial determination that an applicant is otherwise qualified for the position:

  • Asking orally or in writing about the applicant’s criminal record;
  • Receive information through a criminal history background check; or
  • Otherwise obtaining information about the applicant’s criminal record.

For purposes of the Act, an applicant is “otherwise qualified for the position” when the applicant meets the basic criteria for the position as set out in the advertisement or job description without consideration of a criminal record.

The Act also limits the content of an employer’s advertisements for job openings and hiring policies by specifically prohibiting:

  • Advertising employment openings in a way that excludes people with criminal records from applying (e.g., ads that state “no felons” or “no criminal background”); and
  • Maintaining any policy or practice that automatically or categorically excludes individuals with a criminal record from consideration prior to an initial determination that the applicant is otherwise qualified for the position.

o   Such prohibited policies and practices include rejecting an applicant for failure to disclose a criminal record prior to initially determining the applicant is otherwise qualified for the position.

Activities and Employers Not Covered by the Act Continue reading Washington Joins the “Ban the Box” Bandwagon