AR Takes Employer-Focused Approach to Medical Marijuana in the Workplace

Arkansas amended its Medical Cannabis Amendment in favor of employers

In November of 2016, Arkansas legalized medical marijuana in Initiative 6, the Arkansas Medical Cannabis Amendment (MCA). Since then, Arkansas has taken steps that demonstrate the state has an employer-focused approach to marijuana when it comes to the workplace.

The MCA allows “qualifying patients” with certain medical conditions to purchase cannabis from state-licensed dispensaries When it comes to employers, the MCA, like most legislation in other states, makes it unlawful for an employer to discriminate against an “individual” based on his or her past or present status as a “qualifying patient.”

In an effort to clarify the obligations and restrictions on employers, Arkansas recently amended the MCA. Some of the more significant changes include:

The MCA now only applies to employers with nine or more employees (employers with 8 or less are not subject to the MCA’s anti-discrimination provisions).

The anti-discrimination provisions now apply only to “applicants” and “employees,” not all “individuals.”

An employer now cannot be sued under the MCA in the following circumstances:

– if he or she is acting in accordance with a drug-free workplace program or policy

– if he or she is acting on a good faith belief the marijuana was possessed or used on the premises of the employer or during hours of employment.

– if her or she is acting on a good faith belief that the employee or applicant was under the influence of marijuana while on the premises of the employer or during hours of employment.

– if excluding or removing an employee or applicant from a “safety sensitive position” based on the employer’s good faith belief that he or she was engaged in the current use of marijuana.

The MCA has a one year statute of limitations.

Damages under the MCA are statutorily capped.

Individuals, such as managers or supervisors, cannot be individually sued under the MCA.

Employer Takeaway: Employers should update their written policies and implement new practices if operating in a state with a medical marijuana law. Drug testing policies and procedures should also be reviewed and updated and “safety-sensitive” positions should be identified, along with written job descriptions for them.

Uber to Pay Up to $25 Million for Allegedly Misleading Consumers About Background Checks

On April 7, 2016, Uber agreed to settle a lawsuit brought against the company in 2014 by the district attorneys of both San Francisco and Los Angeles. In the suit, the ride-sharing provider was accused of misrepresenting the comprehensiveness of its driver background screening process when the company referred to its service as “the safest ride on the road” or claimed its background checks were the most thorough in the industry. San Francisco District Attorney George Gascon and Los Angeles County District Attorney Jackie Lacey alleged that Uber’s lack of fingerprinting, which is required for taxi operators in California, gave riders a “false sense of security when deciding whether to get into a stranger’s car”

As we reported in our blog post when this suit was first filed, considering fingerprinting to be the “gold standard” when it comes to background screening continues to be a myth perpetuated by the media, legislators, and now the courts. The FBI has acknowledged that its fingerprint-based repository is limited and that it’s missing disposition information in about 50 percent of its records. Professional background screeners are well aware of this deficiency and, as a result, utilize a much more reliable set of tools, including direct court research across multiple jurisdictions, in order to build a significantly more complete picture of an individual’s criminal history. We talked about these tools in our blog post from last May What Constitutes a Thorough Criminal Background Check.

Uber has claimed no wrongdoing in the settlement, but have agreed to pay a civil penalty of $10 million to Los Angeles and San Francisco counties within the next 60 days. The company will be subject to a $15 million civil penalty if they don’t comply with the terms of the settlement over the next two years.

Los Angeles County District Attorney’s Office Press Release

Uber Driver’s Shooting Spree Puts Target on Background Screening

The terror and tragedy that Uber driver Jason Dalton brought upon the city of Kalamazoo during the evening of Saturday, February 20th is unimaginable.  His shooting spree, which took place at three separate locations around the city over the course of seven hours, left 6 dead and 2 wounded with the victims ranging in age from 14 to 74. Dalton, who is a married father of two and drives part time for Uber, randomly chose his victims in between picking up new fares.

When the story initially broke, news sources were quick to call into question Uber’s background screening procedures and, in particular, their use of a third-party professional background screening company rather than a fingerprint-based background check. One online media outlet even subtly implied in their headline that Dalton had a criminal history which wasn’t uncovered by the Uber background check. However, all information thus far indicates that Dalton had no prior criminal history, therefore no manner of background check, third-party based, FBI fingerprint or otherwise, could have uncovered information to keep him from getting behind the wheel for Uber.

The media attention given to background checks has increased exponentially as ride-sharing companies like Uber and Lyft have experienced rapid growth and expanded into cities all across the US. Unfortunately, the news stories that result from a horrific incident like the one that occurred in Kalamazoo often provide misleading information and perpetuate misconceptions about the background screening process. Foremost, the public is led to believe that if a background check isn’t based on the FBI’s fingerprint database then it is deficient and that fingerprinting is the only reliable option for uncovering criminal history. It’s important to understand the underlying factors that make this belief inaccurate.

FBI background checks aren’t available to all employers. Only those mandated by federal or state law to utilize the FBI database can do so. However, even if all employers were allowed to use the FBI background database, there are inherent deficiencies in the information available that would make it a highly ineffective and a risky solution by itself.

The FBI system was not built as an employment screening tool. Although many state and federal laws now mandate FBI fingerprinting to screen applicants and volunteers, the FBI system is flawed – and admittedly so. (See our previous blog post on this topic.) In fact, according to a a study published by the United States Government Accountability Office in February of 2015 , only 20 states reported more than 75% completeness when it comes to fingerprint records and 7 came in under 25%.  In addition to the less than 100% compliance with submission of information from the local agencies, many jurisdictions don’t fingerprint for all arrests. If the states do submit proper fingerprints, many of those records are never updated with the final disposition of the charge. An employer needs the full criminal history including the critical disposition information before making a decision on whether or not to hire an applicant.

Alternatively, professional background screening companies provide a more comprehensive view of the applicant’s background by utilizing multiple sources and techniques to gather information. Direct county, state, and federal court access to criminal records, combined with sex offender registry searches, terrorist watch lists searches, motor vehicle history, and verifications of past employment and education make for a much more thorough and reliable background check than fingerprints alone. While database searches are also often included in a comprehensive search package, relying on any single database, especially one known to be incomplete, as the sole source of information for uncovering criminal history puts companies and the communities they serve at risk. The bottom line is there is no one source for the most accurate background search, it is best to compile information from as many sources as possible to create the overall picture of prospective employee or volunteer.

In addition to the comprehensiveness of a professional background screen, there are many protections in place for the applicant or volunteer that are not found when FBI checks are utilized. When a professional background screening company conducts the search, the rules of the Fair Credit Reporting Act (FCRA) and Equal Employment Opportunity Commission (EEOC), as well as many state and local laws must be followed to protect the applicant.

As the conversation around background checks ramps up in the aftermath of this horrible crime, our hope is that the media and legislators will become educated about the myth of the fingerprint “gold standard” and realize that pressing for companies like Uber to rely on it for vetting their applicants will likely have unintended consequences that harm the community more than help it.

In the days and weeks that come, we at Hire Image wish the victims, their families, and the community of Kalamazoo healing from this immense tragedy.

Kohl’s Posts Important Victory in FCRA Class Action Case

A federal judge in California has granted a motion to dismiss in the class action lawsuit COLEMAN v. KOHL’S DEPARTMENT STORES, INC. Former employees Kayoni Coleman, employed by Kohl’s in California from October 2012 to June 2013, and Diane Pemberton, employed by a store in Kissimmee, FL from mid-2014 to January 15, 2014, claimed that Kohl’s unlawfully combined the Consent and Disclosure used for background checks within the same packet as the employment application rather than making it a stand-alone as is required under the Fair Credit Reporting Act (FCRA).

The judge, however, found that the plaintiffs failed to prove that Kohl’s had willfully violated the FCRA and cited the plaintiff’s own admission that the Employment Application and Consent and Disclosure Form were two separate documents. A review of the documents submitted by Kohls as exhibits also made it clear to the court that they were two separate documents and the judge spoke to this clearly in the ruling: (more…)

BMW Signs Consent Decree in Settlement of EEOC Lawsuit

To settle a discrimination lawsuit brought against them by the EEOC in 2013, BMW Manufacturing Co. will pay $1.6 million to a group of 56 former employees and offer them their jobs back at a manufacturing plant located in South Carolina. In the decree the EEOC claims that under Title VII of the Civil Rights Act of 1964 BMW “discriminated against black logistics employees through its application of criminal background check guidelines that had a disparate impact which resulted in said employees being discharged”. The claimants in the suit were employed by UTi Integrated Logistics Inc. which contracted with a BMW manufacturing facility in Spartanburg, SC until BMW contracted with another company in July of 2008. Under BMW’s agreement with the new contractor, all UTi employees were required to reapply for their positions as well as have a criminal background check performed. BMW’s background check policy made no distinction between felony and misdemeanor convictions and explicitly stated it will exclude individuals from employment for convictions related to:

“Murder, Assault & Battery, Rape, Child Abuse, Spousal Abuse (Domestic Violence), Manufacturing of Drugs, Distribution of Drugs, [and] Weapons Violations.”

“any convictions of a violent nature are conditions for employment rejection,” and “there is no statute of limitations for any of the crimes.”

“theft, dishonesty, and moral turpitude.”

The criminal background checks resulted in 88 employees being denied employment with the new contractor.  80% or 70 of those denied employment were black.  The suit stated that each of the claimants was a qualified applicant who had worked in the facility for several years and cites an example of a female claimant who had worked in the BMW plant for 14 years, but was denied employment based on a misdemeanor simple assault conviction from 1990 that was punished with a $137 fine.

BMW has claimed no liability or wrongdoing, but, in addition to the monetary restitution and offer of reinstatement to those employees who were terminated, they are also required to alter their background screening and hiring process.  Some of the key requirements are as follows:

  • BMW agrees that they “shall not decline to hire any job applicant or otherwise disqualify any individual from employment in a logistics position because of criminal arrests or charges of any type if such arrests or charges did not result in a conviction”. It is permitted to postpone an offer of employment until final determination has been made on pending charges.
  • BMW must conduct an assessment of an individual’s criminal history before taking adverse action. This process includes but is not limited to providing a written notice to the applicant explicitly describing the criminal history which may be the basis for adverse action and offering the applicant an opportunity to discuss their history and fitness for the job.
  • BMW must provide 21 days between this pre-adverse notification and final adverse action if the decision is made not to hire after the assessment is complete.  This is a significant departure from standard practice given that most employers, following FCRA guidelines, extend a 5 day grace period between pre-adverse and adverse action.
  • BMW must appoint an official to review final decisions before disqualifying an applicant based upon the results of his/her criminal background results.

According to Montserrat Miller, partner at Arnall Golden Gregory, the settlement agreement is noteworthy because (a) the EEOC is mandating that BMW conduct an individualized assessment each time criminal history is considered, and (b) the 21-day time frame.  In her blog Miller states, the EEOC’s enforcement guidance on the use of criminal records does not mandate “individualized assessments”.  She also points out, “employers typically provide 5 business days between providing a job applicant with the pre-adverse action letter under the federal Fair Credit Reporting Act and the adverse action letter (assuming the employer is not going to hire the candidate).  Conceding the point that adverse action notices are different than an individualized assessment and any notice related to that, it is interesting to note the 3 week time period here and what that may mean for employers who may seek to terminate a job applicant due to their criminal history.”

Employers are encouraged to speak to their legal counsel to see how or if this settlement will impact their screening process.

Click the link to read the full text of the decree BMW Consent Decree 2015 09 08

HOME DEPOT SETTLES FCRA LAWSUIT FOR $1.8 MILLION – FOLLOW THESE TIPS TO FOLLOW FCRA REQUIREMENTS

Home Depot USA, Inc. (Home Depot) agreed to pay $1.8 million to settle a class action lawsuit for allegedly violating the Fair Credit Reporting Act (FCRA) over its background check policies. According to the agreement, Class Members will received between $15 to $100. The proposed class includes approximately 120,000 individuals. The initial complaint alleged that Home Depot’s background check disclosure forms contained extraneous information with a release of liability statement, violating the FCRA. Fernandez v. Home Depot USA, Inc., No. 8:13-cv-00648

Here is a reminder of how to stay in compliance with FCRA requirements:

  • The FCRA summary of rights must be provided to the applicant before performing a background check and also if/when a Pre-Adverse action letter is sent to the applicant. In order to stay in compliance with the FCRA, this summary of rights must be given to applicants at both times. The latest form can always be found at http://files.consumerfinance.gov/f/201504_cfpb_summary_your-rights-under-fcra.pdf
  • Disclosure and Authorization forms must be stand-alone documents. They should not contain extraneous information, and they must be given to applicants at the proper time. Before performing a background check, an employer must disclose in writing to an applicant/employee that he/she will be the subject of a background screening. The employer then must obtain a signed authorization from the applicant/employee permitting the background check. The FCRA allows the disclosure and authorization forms to be combined into one document; however it must be a stand-alone document and not made a part of the employment application. It is also important not to have a release of liability included on these forms.
  • Employers must notify applicants when an adverse employment decision is made based on any part of a background check. The FCRA requires a Pre-Adverse Action letter be provided to the applicant to give them a chance to to review their report and dispute any information they believe to be inaccurate. The Pre-Adverse letter should contain a copy of the report along with the ‘FCRA Summary of Rights’. After a final decision has been made not to hire, the employer must send a second Adverse Action letter, sometimes called “Final Adverse Action” or “Second Notice.”

FCRA class action lawsuits have the potential to be extremely costly as evidenced in the latest settlement with Home Depot. Plaintiffs can recover up to $1,000 per violation plus attorney fees, punitive damages and actual damages. It is important that employers and hiring personnel keep these lawsuits in mind when developing and carrying out hiring procedures. Click here for more information about staying in compliance with the FCRA.