Don’t Get Caught Behind the Curve!

Merriam-Webster defines “compliance” as the conformity in fulfilling official requirements.  Many organizations have a legal department or a Compliance Officer tasked with keeping their companies on the right track.  Even with the right people and tools in place, companies can easily miss an important regulatory change.  

Numerous federal, state, and local laws and ordinances change every day, impacting compliance requirements or best practices related to pre-employment background screening. Some of the most recent include New EEOC Criminal Check Guidance-individualized assessments, CORI Law, California Credit Notice/Addendum; Ban the Box and FCRA Notices.

From the Blooper Book

Calling for references on applicants can be a challenging task – just take a look at some of the calls we’ve made recently.

Business Reference: “I highly recommend him.  He is funny.”

Business Reference: “He is not going to like this, but he is like a Golden Retriever, loyal and dedicated.”

Business Reference: “His strengths?  He is strong.  His weaknesses?  That’s about all he is.”

Business Reference: “He’d always show up on time, but I had to fire him that day he forgot his pants.”

Business Reference: “Oh, I’d hire him back in a minute, as long as he returns that DVD of ‘Dallas’ that he borrowed.”

BAN THE BOX

Now over 40 cities and counties and several states have “ban the box” legislation either passed or on the books we caution employers to be aware of their own state/city legislation in this area.  Many of these laws effect public and state employers, however, Hawaii, Massachusetts, Newark and Philadelphia-all have ban the box for both private and public employers.  The legislation differs by state/county and at a minimum the employer cannot inquire about individuals past criminal record until at least a conditional offer.   Often this legislation will include an individualized assessment process if criminal record information is discovered on a job candidate. 

New National Social Media Privacy Law has been introduced to Congress

As more and more states ban employers from asking an employee/applicant for their social media password, now Congress is proposing a bill that would prohibit employers and certain other entities from requiring or requesting that employees and certain other individuals provide a user name, password, or other means for accessing a personal account on any social networking website.  This Bill sponsored by Representative Elliot Engel, D-N.Y., has introduced H.R. 537, the "Social Networking Online Protection Act." If passed, it will address the concerns of more than twenty states that have similar legislation pending, and provide a national legal standard that has already been adopted in California, Delaware, Illinois, Maryland, Michigan, and New Jersey. How would this legislation impact employer?  The standard will not change an employer’s ability to see what is shared publicly.  Employers who use social media for background screening or any other means will not be allowed to ask for passwords and employers who use social media screening in the states that have passed similar legislation must not ask for social media passwords. 

Click Here to Read the Proposed Act

Court Rules Random Alcohol Tests Do Not Violate ADA

A district court has ruled that random tests for alcohol performed on probationary employees who work in safety-sensitive positions do not violate the Americans with Disabilities Act (ADA). The decision in EEOC v. United States Steel Corp., marks the first time that any court has addressed this issue and could serve as a reference point for employers accused of discrimination through their use of medical examinations. The court agreed with U.S. Steel's argument that the random testing program is job related and consistent with business necessity because it allows the company to detect alcohol impairment on the job, which is a workplace hazard. "Employers can view the U.S. Steel decision as a very important affirmation of their right to take reasonable steps to ensure a safe workplace," said Robin Shea, a partner at employment law firm Constangy, Brooks & Smith. While the court's decision should provide a measure of relief to employers in heavy industry, Shea advises that until the case is resolved on appeal, employers should continue complying with the EEOC's guidance.

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Vermont Marijuana Legalization Bill Filed

Vermont has become the latest state to see a marijuana legalization bill filed this year. House Bill 499, "An Act Relating to Regulation and Taxation of Marijuana," was introduced to the House and assigned to the House Judiciary Committee on Tuesday.

It would allow people 21 and over to possess up to two ounces of marijuana and grow up to three plants. The bill also legalizes the possession of pot paraphernalia. It would also "create a regulatory structure for the wholesale and retail sale of marijuana that includes licensing and oversight by the Department of Liquor Control." People who possess more than two ounces or three plants or who sell marijuana outside regulated commercial channels would still be subject to criminal penalties.

Aurico reminds employers that Marijuana is an illegal substance according to federal law and employers have other laws and regulations to follow, including OSHA, and DOT regulations.

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International Law - The UK Proposed Legislation to Seal Certain Convictions

The UK has started the legislative process (subject to agreement by Parliament) so that certain old and minor cautions and convictions will no longer be disclosed on a DBS (disclosure and barring service, formally CRB criminal records bureau) certificate. This action is in response to the Court of Appeal judgment in January this year which stated that the disclosure of all cautions and convictions on a DBS Certificate was incompatible with Article 8 of the United Kingdom Convention for Human Rights.   The filtering rules which are now before parliament for consideration are:

I-9 & E-Verify News

Reminder—CHANGES TO FORM I-9 effective May 7, 2013

USCIS has released information about important changes recently made to the Form I-9.
USIC has released information regarding some recent changes including the changes to the form I-9

Changes to the Form

• New revision date (03/08/2013 N) and expiration date (03/31/2016)
• Instructions for Form I-9 are six pages (formerly 3) with links to resources
• Form I-9 is now two pages
• Fillable with drop down menus for date and country of issuance
• Data field titles are clearer
• Section 1- New Fields:
• E-mail address and phone number (optional)
• Alien Authorized to Work
• Foreign passport and country of issuance
• Section 2:
• Employee’s name on top of form
• New fields for List A document combinations

For more information about the new I-9:

Read the press release. Visit I-9 Central. Review the updated Handbook for Employers, Guidance for Completing Form I-9 (M-274). Take a free webinar.

SHRM Article - Increased Audits by ICE

The number of I-9 audits multiplied over the past decade, rising from almost none—just three in 2004—to 500 in 2008 and 3,004 in 2012.

Employers should pay attention accordingly, as the fines for substantive and procedural violations of the Immigration Reform and Control Act (IRCA) can add up quickly, Daniel Brown, an attorney with Fragomen in Washington, D.C., said on March 12, 2013, at the Society for Human Resource Management’s 2013 Employment Law & Legislative Conference.

EEOC News

The EEOC has identified enforcement of the Equal Pay Act as a top priority in its strategic enforcement plan for fiscal years 2013 – 2016. Importantly, the EEOC has authority to request employer compensation information and launch an investigation without receiving a charge from an individual. The Commission is currently initiating such audits through a pilot project. Illinois employers beware that the pilot project includes the Chicago office.

EEOC Targets Equal Pay
Contributed by Jon Hoag