Hire Image News

Massachusetts Court Delay Updates

CEO, Christine Cunneen, along with other members of the NAPBS Government Relations – Access Subcommittee met with the Massachusetts District Court Administrator to address delays faced by CRAs in dealing with Massachusetts court records.  Improvements with speed and availability have already been noted.  See below for more information:

 

 

Attention New York City Employers: Salary History Law Goes into Effect on October 31st

As of October 31, 2017, all New York City employers, regardless of their size, are prohibited from inquiring about a job applicant’s salary history during the hiring process.

While the law continues to allow employers to engage in discussions with prospective employees about salary and benefits expectations, it is now an unlawful discriminatory practice for an employer in New York City to:

  • inquire into the salary history of an applicant or
  • to rely on the salary history of an applicant to determine the salary, benefits, or other compensation during the hiring process.

The term “inquire” includes searching public records for an applicant’s compensation history.  It is important to note that inquiries would violate the law regardless of whether they are made before or after a conditional offer.  However, if a prospective employee volunteers such information, without prompting, the employer may consider it.  The New York City Commission on Human Rights has also included some guidance in the form of Frequently Asked Questions.

Best Practices Tip:  Employers in New York City should exclude any written or oral references to salary history, including compensation and benefits and train their hiring personnel accordingly to stay in compliance with the new law.  They should also keep detailed documentation on what factors besides salary history went into the salary offer decision.

Full text of the New York City law.

California’s New Fair Chance Act Expands ‘Ban the Box’ More Than Just Geographically

The Governor of California signed several employment bills into effect this month, including statewide ban the box legislation.  These new laws become effective on January 1, 2018 and will have significant impacts on employers within the entire state.

AB 1008, the California Fair Chance Act, prohibits employers with five or more employees from asking about an applicant’s criminal records or conviction history until that applicant has received a conditional offer of employment.  Then, and only then, may an employer inquire as to the applicant’s criminal history.

The California Fair Employment and Housing Act (FEHA) issued final regulations, effective July 1st 2017, on the consideration of criminal history in employment decisions and this bill confirms what was provided therein.  Specifically, that it is an unlawful employment practice under FEHA for a California employer to consider, distribute, or disseminate information about any of the following:

  • Arrest not followed by a conviction (except in limited circumstances),
  • Referral to or participation in a pretrial or post-trial diversion program
  • Convictions that have been sealed, dismissed, expunged or statutorily eradicated pursuant to law.

The legislation goes further to require employers who intend to deny employment because of a criminal record to make an individualized assessment of that applicant.  They must consider the age, nature, and gravity of the offense and do so with particular regard to the position for which the applicant has applied.  This assessment should be consistent with EEOC Guidelines in the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

If an employer makes a preliminary determination based on the assessment to deny employment, the employer must notify the applicant of the reasons for that preliminary decision in writing and must include the following:

  • The conviction item that is the basis for the potential denial.
  • A copy of the conviction history report.
  • Explanation of the right to respond, and time limit thereof, which shall include the right to submit evidence disputing the accuracy of the report, evidence of rehabilitation or mitigating circumstances, or both.

The applicant has five business days to respond with a dispute of accuracy or information that supports mitigation or rehabilitation.  If, within the five business days, the applicant notifies the employer in writing of a dispute or mitigating circumstances, then the applicant shall have five additional business days to respond to the notice.

The employer shall consider information submitted by the applicant during the pre-adverse process prior to making a final decision on hiring the applicant.  If that final decision is to deny employment, an employer must notify the applicant in writing with the following information:

  1. The final denial.
  2. Any existing procedure the employer has to challenge the decision or request reconsideration.
  3. The right to file a complaint with the Department of Fair Employment and Housing.

Best Practices Tip: California employers should act now to prepare themselves for implementation of this new law to ensure they are in compliance, as of January 1, 2018.  They should update their employee and hiring manuals and train hiring personnel to avoid all questions pertaining to criminal histories until a conditional offer of employment has been made and to ensure proper handling of the use of criminal records in the hiring process.

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.

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.

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.

For employers, be aware that not all tax liens and civil judgments will be revealed in a credit report. Employers should review their current process and consider alternatives. Hire Image can assist in developing a search that will report tax liens and civil judgments that are no longer being shown on a credit report. With our hands-on court searches, Hire Image matches identifiers and reports the information belonging to the applicant.

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