Hire Image News
California Bans Salary History Questions
As of January 1, 2018, California employers will no longer be able to ask a job applicant about his or her salary history. California joins three other states (Delaware, Oregon, Massachusetts), three cities (New York City, Philadelphia*, San Francisco), and Puerto Rico, all of which have similar laws prohibiting employers from seeking or relying on an applicant’s salary history when making hiring and compensation decisions. Under AB 168, employers:
(1) May not ask, either orally or in writing, personally or through an agent, for an applicant’s prior salary history, including compensation and benefits needs and requirements;
(2) May not consider such information, if it is learned, in determining whether to offer employment to that applicant and if so, what compensation package should be offered; and
(3) Must provide a pay scale for the position being applied for upon reasonable request of the applicant.
There are very few caveats to these rules. For example, applicants are not prohibited from voluntarily, without any prompting by the employer, disclosing their salary history, and if they choose to do so, employers may consider that information. Additionally, the law does not apply if the salary history is disclosable to the general public pursuant to federal or state law. Finally, the law does not define “pay scale” or “reasonable request.”
While proponents argue that this law will help to narrow the gender wage gap, many employers and other groups point out that it eliminates not only their ability to attract the right people to the positions, but also their ability to negotiate a fair wage, without fear of a lawsuit if they say the wrong thing.
California employers must act now to prepare themselves for implementation of this new law to ensure they are in compliance. They should update their employee and hiring manuals, train hiring personnel to avoid all questions pertaining to salary histories, including benefits packages, and establish pay grades for each position to be able to respond to requests from applicants.
*The Philadelphia law is currently being challenged.
Effective Date for New Form I-9 is September 18th
The USCIS released a revised version of Form I-9, Employment Eligibility Verification on July 17, replacing the current version (dated November 14, 2016). This is the second mandatory change in less than one year. While the changes are generally minor in nature, all employers will be required to use the new form (dated July 17, 2017) as of September 18, 2017. Employers may use the previous or the current form through September 17. However, after that date, all previous versions will not be acceptable.
NYC’s FCA Final Rules & Regulations
New York City’s Fair Chance Act: Final Rules and Regulations issued
Although the New York City Fair Chance Act (FCA) became effective in October, 2015, the City has just published the Final Rules and Regulations.
If you are a NYC employer, please read the article below for more information.
Massachusetts Supreme Judicial Court Rules in Favor of Employee Terminated for Use of Medical Marijuana
Massachusetts Supreme Judicial Court Rules in Favor of Employee Terminated for Use of Medical Marijuana
The Massachusetts Supreme Judicial Court recently ruled in Barbuto v. Advantage Sales & Marketing LLC et all, a case that questions an employer’s obligation to make accommodations for an employee’s off-site use of marijuana for medical purposes under the Massachusetts Anti-Discrimination and Medical Marijuana statutes. In the ruling, the court decided that an employee may proceed with a claim of handicap discrimination after being terminated from employment based on a positive workplace drug test result for her off-site use of medical marijuana.
The employee in the case started a new job and explained her use of marijuana in treatment of her Crohn’s Disease to her employer when asked to submit to a drug test. She was terminated after failing the test. The employer based its termination decision on reasoning that they follow federal law, under which marijuana, for any use, is illegal, rather than state law. The employee then sued alleging violations of the Massachusetts Anti-Discrimination law and the state Medical Marijuana law, as well as alleging claims of invasion of privacy and violation of public policy. The employee argued that she “should not be faced with the cruel choice of treating her disability or earning a livelihood.” Specifically, she pled six claims:
(1) handicap discrimination in violation of G. L. c. 151B, § 4 (16);
(2) interference with her right to be protected from handicap discrimination in violation of G. L. c. 151B, § 4 (4A);
(3) aiding and abetting the employer in committing handicap discrimination in violation of G. L. c. 151B, § 4 (5);
(4) invasion of privacy in violation of G. L. c. 214, § 1B;
(5) denial of the “right to privilege” to use marijuana lawfully as a registered patient to treat a debilitating medical condition in violation of the Medical Marijuana Act; and
(6) violation of public policy by terminating her employment for lawful use of marijuana for medicinal purposes.
The Superior Court dismissed all of the claims except invasion of privacy. Ms. Barbuto then appealed to Massachusetts highest court, the Supreme Judicial Court, and oral arguments were heard. The Massachusetts Commission Against Discrimination (MCAD) also filed a brief arguing that the Medical Marijuana statute is meant to be liberally construed in order to promote equal opportunities in employment.
In reversing the lower court’s decision to dismiss the claims, the court noted the following, “Under Massachusetts law, as a result of the [medical marijuana] act, the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication.” The court also said “[w]here, in the opinion of the employee’s physician, medical marijuana is the most effective medication for the employee’s debilitating medical condition, and where any alternative medication whose use would be permitted by the employer’s drug policy would be less effective, an exception to an employer’s drug policy to permit its use is a facially reasonable accommodation.”
Advantage Sales and Marketing (ASM), the employer in the case, argued that they should be able to take steps, including termination, to ensure a drug-free workplace, especially since under federal law, marijuana, for any use, is against the law. As such, ASM argued it had no obligation to permit an accommodation for such use.
In response to the employer’s argument, the court noted “the fact that the employee’s possession of medical marijuana is in violation of Federal law does not make it per se unreasonable as an accommodation.” The court went further in discussing the extent the employer is obligated for an accommodation in the form of off-site use of medical marijuana by stating that the employer is, in fact, obligated to participate in the interactive process to explore whether there are any alternative, equally-effective medications that could be used that would be in compliance with the employer’s drug policy. Specifically, the court said “[a] qualified handicapped employee has a right under G.L. c. 151B, § 4(16), not to be fired because of her handicap, and that right includes the right to require an employer to make a reasonable accommodation for her handicap to enable her to perform the essential functions of her job.”
According to the ruling, the failure to explore a reasonable accommodation is sufficient in itself to “support a claim of handicap discrimination provided the plaintiff proves that a reasonable accommodation existed that would have enabled her” to perform the essential functions of the job. Where no effective alternative exists, the employer then has the burden of proving that the employee’s use of medication would cause an undue hardship to the business to justify the employer’s refusal to make an exception to the drug policy.
The court did note a significant departure in their reasoning when it comes to “safety sensitive” positions or in situations where such use would violate an employer’s contractual or statutory obligations. If an employer can prove that the continued use of medical marijuana would impair the employee’s performance or pose an “unacceptably significant” safety risk to the public, the employee, or others, he or she would meet the burden to establish that the employee’s use of medical marijuana is not a reasonable accommodation, as it would impose undue hardship on the business. The court made specific note to the transportation industry as an example. As such, in the instances where an employer is dealing with safety sensitive positions, they may be able to show an unacceptable safety risk, thereby causing an undue hardship to the business.
With the court’s reversal of the dismissed claims, the plaintiff may now pursue her disability-related claims, along with her invasion of privacy claim in Superior Court. As for Massachusetts employers, while it may not be the guidance they were looking for, they now have specific direction as it relates to medical marijuana accommodations in the workplace. They must engage in the interactive process to accommodate an employee’s lawful use of medical marijuana and provide a reasonable accommodation, including permitting the off-site use of medical marijuana, unless such use can be proven to result in an undue hardship to their business.
Hire Image always recommends you consult with legal counsel when defining and implementing a drug screening program.
New Form I-9 Released; September 18th effective date
New Form I-9 Released – September 18th effective date
The USCIS released a revised version of Form I-9, Employment Eligibility Verification on July 17, replacing the current version (dated November 14, 2016). This is the second mandatory change in less than one year. While the changes are generally minor in nature, all employers will be required to use the new form (dated July 17, 2017) as of September 18, 2017. Employers may use the previous or the current form through September 17. However, after that date, all previous versions will not be acceptable.
There are changes to both the instructions and the List of Acceptable Documents on Form I-9, with the goal of easing navigation of the form.
The new Form I-9 instructions:
- Remove “end of” from the phrase “first day of employment” when describing the day on which the Form I-9 completion is required; and
- Revise the name of the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, the Immigrant and Employee Rights Section (IER).
Another revision includes the addition of the Consular Report of Birth Abroad (Form FS-240) to List C. Employers completing the form on a computer will be able to select Form FS-240 from the drop-down menus and E-verify users will be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9. All certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) have been combined into selection C#2 in List C. Finally, all List C documents have been renumbered, except for the Social Security card.
All changes are included in a revised Handbook for Employers: Guidance for Completing Form I-9 (M-274). While employers have the option to continue to use the previous Form I-9 through September 17th, it is advisable to start using the updated version as soon as possible to help ensure that all hiring managers and human resource representatives are in compliance by the deadline.
Final, Amended CORI Regulations: What Every Massachusetts Employer Needs to Know
The DCJIS has implemented final, amended regulations for the Massachusetts Criminal Offender Record Information (CORI) law that was enacted in May of 2012. 803 CMR 2.00. The goal of CORI is to create more employment opportunities for job applicants with criminal records. However, the new regulations have serious impacts on Massachusetts employers, who continue to face challenges in their access to, and use of, criminal history information of their job applicants. Some of the more significant impacts of the final regulations are listed below.
Definition of CORI (§2.03)
The term “CORI” now has more specific inclusions and exclusions. CORI is limited to the information recorded as the result of criminal proceedings regarding individuals 18 years of age or older for offenses after September 18, 2013. For offenses prior to that date, CORI includes offenses for individuals 17 years of age or older.
Under the new regulations, CORI specifically excludes the following:
(a) information regarding criminal offenses or acts of delinquency committed by any individual younger than 18 years old unless the individual was adjudicated as an adult and except as otherwise noted;
(b) photographs, fingerprints, or other identifying data of an individual used for investigative purposes, provided the individual is not identified;
(c) evaluative information;
(d) statistical and analytical reports and files in which individuals are not directly or indirectly identifiable;
(e) intelligence information;
(f) information regarding any offenses which are not punishable by incarceration;
(g) public records as defined in the regulations;
(h) daily police logs;
(i) decisions of the Parole Board;
(j) published records of public court or administrative proceedings;
(k) published records of public judicial, administrative, or legislative proceedings;
(l) federal criminal record information; and
(m) anything otherwise excluded by law.
Expanded Definition of Employee (§2.02)
The term “employee” now covers much more than traditional employees and volunteers. It also covers contractors, subcontractors, vendors, and special state, county, and municipal employees. This change was intended to be more consistent with the CRRB interpretation and was meant to provide employers with authority to run background checks for all of those positions.
iCORI Agency Agreement (§2.04)
Employers are now required to enter into iCORI Agency Agreements prior to obtaining or renewing electronic access to the system. These agreements include employer representations that the employer has complied with CORI laws and regulations and that they maintain a current “need to know” list (maintained and updated every six months and available to DCJIS upon request) of staff that the employer has authorized to request, review, or receive CORI. Additionally, the requestor may only request the level of CORI access authorized under statute or by the DCJIS and they are liable for any violations of the CORI laws or regulations.
CORI Acknowledgment Forms (§2.09)
Prior to submitting a CORI request, an employer must obtain a signed CORI Acknowledgment Form for each subject to be checked and sign and date the Form certifying that the subject was properly identified with government issued identification. Sample forms are available on the DCJIS website. Employers may either use the sample form or use the same language on their own form. The Form will continue to be valid for one year; however, the prior 72-hour notice requirement to the individual has now been eliminated under the new regulations. All CORI Acknowledgment Forms must now also be destroyed along with CORI reports.
Storing and Retaining CORI (§2.12)
CORI can be stored in three ways, all with appropriate security measures:
(1) Hard copies are to be stored in a separate locked and secure location (eg. file cabinet), access to which is limited to employees who have been approved to access CORI.
(2) Electronically-stored CORI shall be password protected and encrypted. Password access must be limited to employees who have been approved to access CORI.
(3) CORI can now also be stored using cloud storage methods, if the following is adhered to:
(a) The requestor must have a written agreement with the cloud storage provider including the minimum security requirements published by the DCJIS (this agreement is subject to inspection by the DCJIS); and
(b) The cloud storage method must provide for encryption and password protection of all CORI. No matter what form of storage is used, CORI may not be retained longer than seven years from the date of final employment, volunteer, or licensing decision.
Pre-Adverse Action Notices (§2.20)
Before taking adverse action based on CORI, the requestor must follow these steps:
• Provide the subject with a pre-adverse action disclosure that includes a copy of the subject’s consumer report and a copy of A Summary of Your Rights Under the Fair Credit Reporting Act by meeting the subject in person, by telephone, by electronic communication, by fax, or by hard copy correspondence;
• Provide a copy of CORI or criminal history of the subject;
• Identify the source of the criminal history information;
• Provide a copy of the requestor’s CORI policy;
• Identify the specific information in CORI that is the basis for the potential adverse decision;
• Provide the subject an opportunity to dispute the accuracy of the information contained in CORI or criminal history information;
• When CORI is considered as a part of a potential adverse action, provide the subject with a copy of the DCJIS information regarding the process for correcting a criminal record; and
• Document all steps taken to comply with the regulations.
Obtaining CORI from Background Screening Companies (§11.06)
Background screening companies are still permitted to obtain CORI on behalf of employers, with certain restrictions. Under the final regulations, background screening companies are prohibited from storing CORI results, unless they are authorized to act as the decision maker in the hiring process, which is extremely rare. Despite the impracticability, this restriction for employers remains in effect. Employers must also now provide a statement to the background screening company indicating whether the salary for the position is above or below $75,000.
Take Away for Massachusetts Employers Using CORI
Employers should review their CORI policies and procedures and update them accordingly to ensure compliance under the final regulations. Given the increased attention to the use of criminal history information in employment decisions and the restrictions placed upon employers in Massachusetts and other states, employers must be diligent in their actions and documentation, and are advised to consult their employment counsel before making any changes.
Credit Bureaus Will Stop Reporting Many Tax Liens and Civil Judgments
On July 1, 2017, the three major credit bureaus will stop reporting tax liens and civil judgment records that lack additional identifiers.
TransUnion, Equifax and Experian will no longer use these records when evaluating credit unless they can match a person’s name, address and either Social Security Number or date of birth in the public records.
This change is an outgrowth of a settlement involving 31 state attorneys general challenging errors in credit reports and is not due to a legislative change.
UPDATE: New State Laws and/or Regulations to Go Into Effect
Three states have expanded existing laws or regulations pertaining to the criminal background checks by private employers, as follows:
BAN THE BOX: As of July 1, 2017, Connecticut law prohibits asking about criminal history on job applications and denying employment solely on the basis of “erased records.” Pardoned and/or rehabilitated convictions cannot form the sole basis of a discharge.
Read our original news item here:
news/june-2016-connecticut-to-ban-the-box-on-january-1-2017/default.aspx
BAN THE BOX: As of July 1, 2017, Vermont employers are prohibited from requesting criminal record information on an initial application. If subsequently uncovered by the employer, the applicant must be given an opportunity to respond.
Read our original news item here:
news/may-2016-vermont-becomes-eighth-state-to-ban-the-box-for-private-employers/default.aspx
GUIDANCE ON THE CONSIDERATION OF CRIMINAL HISTORY/MARIJUANA: As of July 1, 2017, California adopted new regulations that govern the use of criminal history in employment decisions. This largely follows the Equal Employment Opportunity Commission’s 2012 Guidance. Employers cannot consider non-felony convictions for possession of marijuana that are over two years old, nor consider criminal history if doing so will result in an adverse impact on individuals within a protected class. The regulations further require employers to notify applicants before taking adverse action and provide them a reasonable opportunity to present evidence that the information is factually inaccurate. Reminder that as of January 1, 2017, California employers are also prohibited from considering juvenile convictions when making a hiring decision.
Read our original news item here:
Medical Marijuana Cases Impacting Employer Rights to Drug-Free Workplace
Recent court cases in Rhode Island and Massachusetts demonstrate that employers need to consider human resource and legal issues surrounding both applicants and employees who use medical marijuana. These cases not only complicate matters for employers who conduct drug testing for drug-free workplaces, but also create difficulty in reconciling their own safety policies with the courts’ decisions. With these decisions, an employer’s independent right to hire and fire become increasingly complicated when it comes to cannabis use.
Maintaining a safe and productive workplace is paramount for employers, and pre-employment and ongoing drug testing is key. However, tests for marijuana do not measure current impairment, making it nearly impossible for an employer to ensure a safe workplace. Some states significantly restrict the circumstances under which employers can drug test employees. As such, employers are increasingly finding themselves with no effective way to guard against impaired medical marijuana users and to protect not only that employee, but also those working with them.
In Rhode Island, a Superior Court Judge recently ruled on summary judgment that an employer violated the state’s medical marijuana statute when they refused to hire an applicant based on her use of medical marijuana. Callaghan v. Darlington Fabrics, C.A. No. P.C. 2014-5680 (May 23, 2017). The applicant disclosed to her prospective employer, Darlington, when she was applying for an internship that she was a medical marijuana cardholder and current user. She said she would likely fail the required drug test but would not use the substance on property. Darlington chose not to offer employment, stating that passing the drug test is a mandatory condition of employment since they have a drug-free workplace. The applicant sued under the Hawkins-Slater Act (Rhode Island Medical Marijuana Law) and the Rhode Island Civil Rights Act (RICRA).
The judge found that Darlington’s refusal to hire violated the Hawkin-Slater Act’s prohibition against refusing to “employ . . . a person solely for his or her status as a cardholder.” This finding differed from other recent opinions in which courts have rejected claims that refusing to hire a medical marijuana user constitutes disability discrimination. The judge rejected Darlington’s claim that RICRA excuses an employer from having to reasonably accommodate an applicant currently engaged in the illegal use of drugs as defined by federal law, and that they are not required to accommodate the use of medical marijuana among workers.
Other judges may interpret this situation differently and there is a chance that the Supreme Court of Rhode Island could overrule this decision. In the meantime, Rhode Island employers need to be aware of potential legal issues that can arise when dealing with applicants and employees using medical marijuana.
The Massachusetts Supreme Judicial Court recently heard oral arguments in Barbuto v. Advantage Sales & Marketing LLC et al, a case that questions an employer’s obligation to make accommodations for an employee’s off-site use of marijuana for medical purposes under the Massachusetts Anti-Discrimination and Medical Marijuana statutes.
The employee in the case started a new job and explained her use of marijuana in treatment of Crohn’s Disease to her new employer when asked to submit to a drug test. She was terminated the following day after failing the test. In making its decision, the employer reasoned that they follow federal law under which marijuana, for any use, is illegal, rather than state law.
The employee then sued alleging violations of the Massachusetts Anti-Discrimination law and the state Medical Marijuana law, as well as alleging claims of invasion of privacy and violation of public policy. The trial court dismissed all claims, other than her invasion of privacy claim and the employee appealed.
The employee argued that she “should not be faced with the cruel choice of treating her disability or earning a livelihood.” The Massachusetts Commission Against Discrimination (MCAD) also filed a brief arguing that the Medical Marijuana statute is meant to be liberally construed in order to promote equal opportunities in employment. This could have an impact on the outcome, as the court has traditionally given a significant amount of weight to the opinions of the MCAD.
On the other hand, the employer in the case argues that they should be able to take steps, including termination, to ensure a drug-free workplace, especially since, under federal law, marijuana for any use is against the law.
The current law in Massachusetts, while specifically not requiring employers to accommodate for on-site use of marijuana for medical purposes, is silent as to an employee’s off-site use of the drug. As such, the decision in this case should clarify an employer’s obligation, if any, moving forward in these circumstances. A decision is expected in the coming months. For additional information, download the parties’ briefs.
The coming months should reveal whether these cases in Rhode Island and Massachusetts courts will impact employers’ rights to a drug-free workplace and whether other states will follow. In the interim, employers should review all their policies and procedures with regard to drug-testing, hiring and termination. They should also keep informed of any additional rulings and cases on this matter. One thing is certain – the issue of medical marijuana in the workplace is here to stay.
AR Takes Employer-Focused Approach to Medical Marijuana in the Workplace
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.