Update on New Jersey Background Screening Law and Social Networking

On May 20th, the New Jersey Assembly passed A.2878 in concurrence with the recommended changes contained in Governor Chris Christie’s (R) conditional veto. The bill would have prohibited employers from asking current and prospective employees to provide usernames and passwords for social networking sites in order to secure or maintain employment. The bill would also have prohibited employers from asking current and prospective employees if the employees have social networking accounts. Christie provided recommended changes to the bill, including:

o Striking the section of the bill containing a blanket prohibition on employers inquiring whether an applicant has a social networking account;

o Striking the section of the bill creating a private cause of action for violations; and

o Including language protecting an employer’s right to access social networking data available in the public domain.

(http://www.njleg.state.nj.us/2012/Bills/A3000/2878_R4.PDF)

Nevada becomes the 10th State to restrict the use of credit information for employment purposes.

On May 25, 2013, Nevada Governor Brian Sandoval signed Senate Bill 127 into law, which goes into effect on October 1, 2013. The Bill amends Chapter 613 of the Nevada Revised Statutes covering “Employment Practices”.  Senate Bill 127 adds a new unlawful employment practice, employers conditioning employment on a consumer credit report or other credit information.

Nevada joins California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Oregon, Vermont, and Washington in enacting legislation to restrict the use of credit information for employment purposes.

According to Seyfarth Shaw LLP, the new law adopts a very broad definition of employer to include private employers and “any person acting directly or indirectly in the interest of an employer in relation to an employee or prospective employee.” These Nevada employers are now prohibited in their attempts to:

•          Directly or indirectly require, request, suggest or cause any employee or prospective employee to submit a consumer credit report or other credit information as a condition of employment;

•          Use, accept, refer to or inquire concerning a consumer credit report or other credit information;

•          Discharge, discipline, discriminate against in any manner or deny employment or promotion to, or threaten to take any such action against any employee or prospective employee: (a) who refuses, declines or fails to submit a consumer credit report or other credit information; or (b) on the basis of the results of a consumer credit report or other credit information; or

•          Discharge, discipline, discriminate against any  manner or deny employment or promotion to, or threaten to take any such action against any employee or prospective employee who has pursuant to the new law: (a) filed any complaint or instituted or caused to be instituted any legal proceeding; (b) testified or may testify in any legal proceeding instituted; or (c) exercised his or her rights, or has exercised on behalf of another person the rights afforded to him or her.

Besides bringing a civil action against the employer, under the new law, if an employer violates sections 2 to 9, inclusive, of this act, the Labor Commissioner may impose against the employer an administrative penalty (not to exceed $9,000 for each such violation).

To view Senate Bill 127, click here: http://www.leg.state.nv.us/Session/77th2013/Bills/SB/SB127.pdf

Best Practice Standards: The Proper Use of Criminal Records in Hiring

Three influential civil and worker’s rights organizations have released a practical guide to help employers comply with the EEOC Guidance on the proper use of criminal records in hiring.  Jim Owens, CARCO’s CEO, and Fred Giles, CARCO’s SVP, Research Division, worked with the National H.I.R.E. Network, Lawyers’ Committee for Civil Rights and National Workrights Institute, along with Attorney Lester Rosen, Founder and CEO of Employment Screening Resources, to create this best practices piece.  According to Jim Owens, “CARCO is proud to have played a role in the development of this best practices document.   It provides a clear and practical road map for employers to comply with the guidance released by the EEOC in April of 2012 regarding the use of criminal records.”

The Best Practice guide explains, among other things, that employers need to follow sensible procedures in considering the past conviction records of job applicants, since failing to do so will both hurt the employer’s interests and risk discriminating against productive workers of every heritage.  The guide includes a clear, actionable checklist of the 20 Best Practice Standards that should be implemented by employers.

To access the checklist and read the full report, please click here : http://www.carcogroup.com/cmsAdmin/uploads/142787063-Best-Practices-Standards-The-Proper-Use-of-Criminal-Records-in-Hiring.pdf

Lewis Maltby, president of the National Workrights Institute, noted that, “Employers and consumer reporting agencies (CRAs) want to treat applicants with criminal records fairly, but aren’t sure how to do it.  Title VII, Fair Credit Reporting Act, negligent hiring, and state statutes impose complex requirements that are sometimes in tension.  Many important issues aren’t governed by any law. These Best Practices are designed to give employers and CRAs the guidance they need.”

The publication will be the subject of a conference this Fall hosted by John Jay College of Criminal Justice at the City University of New York.    Fred Giles also discussed the Best Practice Standards piece at the Lawyers’ Committee’s 50th Anniversary Dinner on May 23rd in NYC.

New Washington State Law on Social Network Privacy

On May 21st, Washington State Governor Jay Inslee (D) signed into law S.B. 5211, which prohibits an employer from requesting, requiring, or coercing an employee or applicant to disclose login information for the employee’s or applicant’s personal social network account. The law also prohibits an employer from requesting, requiring, or coercing an employee or applicant to enable the employer to observe the contents of such an account or to “friend” the employer. The bill provides an exemption for certain specified investigations by the employer of the employee or applicant.
http://apps.leg.wa.gov/documents/billdocs/2013-14/Pdf/Bills/Senate%20Passed%20Legislature/5211-S.PL.pdf

Free White Paper on the Class Action Lawsuit Bonanza Regarding Pre Adverse and Adverse Action Required by the FCRA

To hire an applicant without assessing whether there is recent, adverse and relevant criminal history creates unnecessary risk for employers. Hiring employees creates both opportunity and risk; it is important for employers to manage both.  There is, however, an often overlooked and easily avoidable risk for employers using background reports that is increasingly and ominously being used as the “suit de jour” for class action suits in federal courts. That cause of action is the failure to follow the prescribed adverse action notification procedures as outlined in the Fair Credit Reporting Act (FCRA) 15 U.S.C. § 1681b(b)(3) Conditions on use for adverse actions. This paper will briefly examine a few recent cases and provide some guidance for employers to reduce their risk of becoming another corporate defendant in an expensive and time consuming class-action lawsuit.

To view the white paper, please click here

The Importance of a Compliant Hiring Process – EEOC Commissioner to Staffing Firms: ‘Nothing Spares You Investigation’

From ASA Staffing Today:
The first day of the sold-out ASA Staffing Law Conference in Washington, DC, began with an animated discussion featuring commissioner Victoria Lipnic of the U.S. Equal Employment Opportunity Commission, who praised attendees for the critical role they play in promoting hiring practices that comply with the law.

She encouraged staffing professionals to examine their overall system for hiring, take note of where in the process criminal background checks become a factor, and look for any systemic red flags that could result in an investigation. “Nothing spares you investigation,” Lipnic stressed.

Attorney Helen L. Konrad of McCandlish Holton PC added that in the past there may have been a few hundred cases per year, but now there are approximately 3,000. “Don’t be afraid to push back on discriminatory requests from clients,” she advised staffing and recruiting professionals.

The sold-out crowd also attended sessions on collecting direct-hire contract fees, conducting investigations into temporary employee harassment and inspections of client work site safety, and complying with EEOC’s criminal background check guidance.

Interesting E-Verify Survey

On April 30th, the National Restaurant Association and ImmigrationWorks USA released a survey of restaurant owners, which found that:
23% use E-Verify to check the immigration status of new hires;
80% would recommend E-Verify to a colleague;
79% responded that the E-Verify system has been 100% accurate; and
55% responded that the pool of applicants seeking employment in their business has not changed since starting to use the E-Verify system.

To view the survey visit:
http://www.immigrationworksusa.org/uploaded/file/IW-NRA%20E-Verify%20survey.pdf