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USE OF BACKGROUND CHECK INFORMATION

Have you ever had a background check conducted for an employee and then wondered if you can use the information provided for another purpose?

The Federal Trade Commission recently posted an article to its blog explaining how, in accordance with the FCRA, an employer or other user of a consumer report cannot “double dip” the information contained within a report. This means that consumer reports ordered for one reason cannot be used for another.

Employers who engage the services of a background screening company should also make sure to read the Notice to Users of Consumer Reports: Obligations of Users Under the FCRA, which explains employers obligations under the law.

Some employer obligations to remember include:

  • Having a “permissible purpose” to request a consumer report from a background screening company.
  • Providing notice regarding the background investigation and securing the person’s written consent.
  • Adverse action notices must be sent out in the event that a negative decision is made based on the content of the consumer report.

LA VOTES TO BAN THE BOX AND THEN SOME – UPDATE

On January 22, 2017, Los Angeles is set become the latest city to “ban the box,” restricting private employers with at least ten employees from asking applicants to disclose their criminal histories prior to an offer of employment.

The Fair Chance Initiative for Hiring Ordinance (FCIHO), adopted last month by LA City Council, will be one of the most restrictive for private employers, going beyond measures set in other parts of the country, including New York and San Francisco.

According to FCIHO guidelines, employers conducting business in Los Angeles may no longer include questions on job applications asking for information regarding an applicant’s criminal history. Employers will also be required to state in all job postings, solicitations, and advertisements that they will consider applicants with criminal histories in a manner consistent with the new ordinance.

In addition, employers who wish to rescind an employment offer after learning of an applicant’s criminal history must first perform a written assessment linking the applicant’s criminal history with “risks inherent in the duties of the employment position.”  The assessment must also consider such factors as the gravity of the offense and the time elapsed.

Before officially withdrawing an offer, an employer must follow the “Fair Chance Process,” which includes providing the applicant with written notification of the adverse employment action, a copy of the written assessment described above, and any other information or documentation supporting the proposed adverse action.   The employer must then allow at least five business days for the applicant to respond with additional information. If the applicant provides mitigating information, the employer must perform a reassessment and provide the applicant with a written copy.

 

Other items from the ordinance LA employers need to consider:

 

  1. A notice must be posted in a conspicuous place informing all applicants that the employer follows all provisions of the Fair Chance Initiative;
  2. Employers may not retaliate against anyone who complains about noncompliance or who tries to enforce rights granted under the ordinance;
  3. Employers must retain all job applications, written assessments and reassessments for a period of three years;
  4. The law is effective immediately, but until July 1, 2017, the only penalty for noncompliance will be a written warning. Starting July 1, 2017, employers that violate the ordinance may be subject to fines and penalties.

 

Employers exempt from the FCIHO include those prohibited by law from hiring individuals with criminal convictions or who are required to possess or use a firearm.

 

For a more in-depth article from Biz Journal, click here.
To read the Fair Chance Initiative in full, click here.

LA Votes to Ban the Box

On November 30, the Los Angeles City Council voted 12-1 to approve an ordinance which prohibits LA employers from inquiring about an applicant’s criminal record until a conditional job offer has been made.

This ordinance adheres to the nationwide “Ban the Box” movement which calls for the removal of check boxes or questions on job forms that ask a person to disclose their criminal history.  The goal of this movement is aimed at giving formerly incarcerated people a better chance at obtaining employment.  So far, more than 100 jurisdictions in 23 states have passed laws that prevent employers from asking about an applicant’s criminal history during the first stages of the hiring process.

Because the initial vote was not unanimous the city council will vote again this month, but the law is still expected to pass since subsequent votes only require a majority. If given final approval, LA employers (except in fields such as child care and law enforcement) with 10 or more employees and city contractors will be prohibited from asking about criminal records on their job applications. Any employer who then decides against hiring someone after learning of their criminal history would need to provide justification for why the offer is being rescinded.

The policy is expected to go into effect January 1, 2017.

For an article from ABC go to: http://abc7.com/business/la-city-council-approves-ban-on-criminal-records-disclosure-for-job-applicants/1634700/

USCIS ISSUES NEW FORM I-9 FOR U.S. EMPLOYEES

On November 14, 2016 the United States Citizenship and Immigration Services (USCIS) released a new version of the Form I-9, Employment Eligibility Verification.

Implemented in 1986 by the Immigration Reform and Control Act, employers use Form I-9 to verify a person’s identity and eligibility to work in the U.S. Employers are required to keep an I-9 Form on file for every employee on their payroll.

Changes to the Form that employers should be aware of include:

  • Section 1 now only requires “other last names used” rather than all “other names used.”
  • The certification for certain foreign nationals has been streamlined and now takes less time to complete.
  • Prompts have been included to ensure information is entered correctly.
  • Space has been added in order to enter multiple preparers and translators.
  • A supplemental page for the preparer/translator has also been added.
  • There is now a dedicated area for including additional information rather than having to add it by writing in the margins.
  • The instructions have been separated from the form and include specific instructions for completing each field.

Additions have also been made to make the form easier to complete electronically:

  • Drop-down lists and calendars for filling in dates.
  • On-screen instructions for each field as well as easy access to the full instructions.
  • Checks to ensure information is entered correctly.
  • A button to print the form.
  • An option to clear the form and start over.
  • When the form is completed and printed, a quick response code is automatically generated.

It is important for employers to review the instructions for completing the new Form I-9 before using it for hiring purposes. Employers should also continue to follow the existing storage and retention rules for all of their previously completed Forms I-9.

The deadline for employers to make the switch to the revised form for new hires is January 22, 2017. It is not necessary to issue the revised form to current employees.

For more information about USCIS and its programs, please visit uscis.gov.

Uber Enacts “Selfie Identification”

On September 23rd, Uber announced a new policy that will require its drivers to take periodic selfies to prove their identity before they can accept a ride request. Using technology from Microsoft’s Cognitive Services, the new feature, called “Real-Time ID Check”, will help to ensure that the driver using the app is the same person Uber has on file.

The goal behind Uber’s new policy is not only to “prevent fraud and protect driver accounts”, Uber wrote in a Blog Post. “It also protects riders by building another layer of accountability into the app to ensure the right person is behind the wheel.”

Uber has been in the news a lot recently, mostly due to the controversy over how they conduct background checks for their drivers.  Multiple women have filed lawsuits against Uber, claiming they were assaulted by their drivers and that the company hasn’t done enough to prevent these attacks.  Some critics argue that Uber should fingerprint their drivers, an argument that forced the ride-share company out of some US cities, but the company believes that its present background checks are sufficient. In addition to an application, potential drivers must provide a copy of their driver’s license, as well as proof of vehicle inspection, registration, and insurance.

Previously, Uber was testing “Real-Time ID Check” in Los Angeles, New York, Miami, and Atlanta. But the policy was expanded nationwide after the announcement was made.

For more information see this article from The Washington Post 

THE ARGUMENT FOR REGULATING APP-BASED RIDE COMPANIES CONTINUES IN MASSACHUSSETTS

On August 5, 2016 Governor Charlie Baker of Massachusetts signed a law enacting more regulations for Uber, Lyft, and other Transportation Network Companies (TNCs). This makes Massachusetts the latest state to approve stronger regulations for TNCs and the first to implement a way to help aid the failing taxi industry. Under the new law, TNC drivers will undergo two stages of background checks. The first will be run by the TNCs themselves, and the second will be conducted by the state and will include a look at criminal and sex offender history. The new legislation in Massachusetts also calls for a 20-cent per ride fee that the TNCs will be responsible for. A portion of this new fee will go toward helping taxi companies who have been hurt by the new technology. This fee will not be passed along to the customers. One proposal of the law did call for fingerprinting of TNC drivers (something that taxi drivers are subject too) but it did not make the final draft of the legislation.

You can read a full article about Massachusetts’ new law here: http://www.patriotledger.com/news/20160805/governor-baker-signs-bill-regulating-uber-lyft-others

New regulations for TNC drivers and whether or not they should be fingerprinted is a nationwide topic of discussion right now, with some cities like Austin, Houston, and Chicago taking the matter into their own hands. Currently, the California Public Utilities Commission is discussing this issue and if you would like to weigh in on the matter, you can take an online survey at: http://www.cpuc.ca.gov/webform.aspx?ekfrm=11394
(see the results of the survey at: http://www.cpuc.ca.gov/fingerprinting/ )

Massachusetts legislation aspires to phase out gender-based discrimination in the workplace.

You know the “employment history” section on most job applications? Of course you do. That’s where you typically wrestle with whether to lie about how much you made in past jobs in the hope of getting a fatter offer for this one.

By July 2018, though, Massachusetts job seekers will become the first in the nation to be free of that ethical and strategic struggle. On Monday, Republican governor Charlie Baker signed a bipartisan bill making it illegal for employers in the state to ask job applicants to disclose their wage or salary history. Among other things, the law also requires companies to pay men and women equally when they do “comparable” work, not just when they hold identical titles and job descriptions.

While the Massachusetts law is ambitious, it doesn’t block every imaginable tactic employers can deploy to hold down labor costs.
It’s an unprecedented step toward closing the gender pay gap—since women typically earn less than men, an employer that bases compensation on a candidate’s earning history is likely to (literally) shortchange her—at a time when states are picking up the slack on the issue from a deadlocked Congress. Most recently, California and New York enacted legislation to promote equal pay and salary transparency.

But while the Massachusetts law is ambitious, it doesn’t block every imaginable tactic employers can deploy to hold down labor costs—even at the disproportionate expense of certain candidates. Here’s what the new measure covers (and what it doesn’t), how employers are responding, and which changes to watch for next.

 
Originally posted by Fast Company. Read the full article at: http://www.fastcompany.com/3062547/the-future-of-work/how-massachusettss-new-pay-law-will-help-close-the-gender-wage-gap-and-ho

The Pros And Cons Of Fingerprinting Uber Drivers

“Uber’s ruthless expansion strategy has put state and local legislators in the middle of the debate over regulation of the on-demand, ride-hailing workforce. Laws requiring background checks for drivers, which can restrict access to Uber’s core asset, are now a central theme of the regulatory battle, focusing specifically on the use of state and federal criminal history databases that require fingerprinting of ride-hailing drivers.

Indeed, Uber and Lyft recently chose to abandon the Austin, Texas market rather than comply with local laws requiring taxi drivers to undergo fingerprint-based background checks (56 percent of Austin voters rejected an initiative to exempt on-demand companies from the city’s law). And in New Jersey and Chicago, where similar measures are now being actively debated, Uber retained former U.S. Attorney General Eric Holder to lobby against the bills by challenging the accuracy and fairness of fingerprint-based FBI background checks (which is an issue that NELP has championed as an advocate of bi-partisan federal reform legislation).

To help inform the debate, it’s important to first clarify that “fingerprinting” is a shorthand term referring to background checks that require an individual’s fingerprint (usually captured by means of “livescan” technology) to access either a state criminal history repository or the FBI database, which collects data from the state and local systems. In contrast to name-based checks conducted by commercial background check companies, fingerprint-based checks are less vulnerable to misidentification. In addition, private employers typically cannot access the databases requiring fingerprinting of the workers unless authorized by a federal, state, or local occupational licensing law, like the ride-hailing laws regulating taxi drivers. Instead, with varying degrees of accuracy, the commercial background check companies collect criminal history data from the local courts, the states, and “aggregators” of criminal history data.”

Originally posted by The Huffington Post. Full Article at http://www.huffingtonpost.com/maurice-emsellem/fingerprinting-uber-drivers_b_10972428.html

“LA City Hall panel backs fining companies for asking applicants about past crimes”

“Businesses that ask a job applicant about his or her criminal history during the hiring process could be fined and forced to pay the applicant up to $500 under a new law being considered by city leaders.

A Los Angeles City Council committee backed a plan Tuesday to penalize businesses that weed out applicants based on criminal convictions.

The rules are part of a law under consideration by the council aimed at giving former convicts a better shot at obtaining employment.

The Ban the Box ordinance, approved in concept last year by the council, bans private employers with 10 or more workers from asking questions related to an applicant’s criminal history before a conditional offer of employment has been made.

Employers also have to strip criminal history questions from job applications under the proposed law. The “box” refers to “check box” indicating a conviction on an application.

Exemptions for employers in the child care or law enforcement industry are allowed under the ordinance.

Los Angeles non-profits, churches, and other groups support the law, contending it will cut jail recidivism rates by helping former convicts land jobs.

Both the state and federal governments have similar rules in place for applicants seeking public sector jobs, while San Francisco has laws that also apply to private companies.

Some Los Angeles business groups, including the Valley Industry and Commerce Association, oppose the proposed Los Angeles law.”

 

Originally posted by Dakota Smith of The Los Angeles Daily News. Full article at http://www.dailynews.com/government-and-politics/20160628/la-city-hall-panel-backs-fining-companies-for-asking-applicants-about-past-crimes

EEOC ISSUES PUBLICATIONS ON RIGHTS OF JOB APPLICANTS, EMPLOYEES WITH HIV

“The U.S. Equal Employment Opportunity Commission (EEOC) today issued two documents addressing workplace rights for individuals with HIV infection under the Americans with Disabilities Act of 1990 (ADA), including the right to be free from employment discrimination and harassment, and the right to reasonable accommodations in the workplace.

The White House has issued a National HIV/AIDS Strategy (NHAS) for the United States. One of the steps identified by the Strategy is to reduce stigma and eliminate discrimination associated with HIV status and services. EEOC has a long history of enforcing the nondiscrimination rights of individuals with HIV infection in employment. During Fiscal Year 2014 alone, EEOC resolved almost 200 charges of discrimination based on HIV status, obtaining over $825,000.00 for job applicants and employees with HIV who were unlawfully denied employment and reasonable accommodations. EEOC now extends these efforts by issuing two documents that explain these rights.

We are proud to be a part of the National HIV/AIDS Strategy,” said EEOC Chair Jenny Yang. “Individuals with HIV infection should know that the ADA protects their rights in the workplace, including the right to reasonable accommodations. By clarifying these rights, and explaining to doctors how they can support their patients’ requests for reasonable accommodation, these publications demonstrate our commitment to ensuring that individuals with HIV infection have full access to employment.”

Living With HIV Infection: Your Legal Rights in the Workplace Under the ADA explains that applicants and employees are protected from employment discrimination and harassment based on HIV infection, and that individuals with HIV infection have a right to reasonable accommodations at work. It also answers questions about the process for obtaining an accommodation; possible accommodations; the privacy rights of people who have HIV infection; the employer’s obligation to keep medical information confidential; and the role of EEOC in enforcing the rights of people with disabilities.

Helping Patients with HIV Infection Who Need Accommodations at Work explains to doctors that patients with HIV infection may be able to get reasonable accommodations that help them to stay productive and employed, and provides them with instructions on how to support requests for accommodation with medical documentation. It also answers questions about the types of accommodations that may be available; the ADA’s protections against employment discrimination based on having the condition or on the need for accommodation; the importance of disclosing the need for an accommodation before a problem occurs; and what to do when an employer raises safety concerns.”

 

Originally posted by JD Supra. Full article at http://www.jdsupra.com/legalnews/eeoc-issues-publications-on-the-rights-74987/