Wisconsin Supreme Court Overturns Exception for Domestic Violence Crimes Under ‘Substantially Related’ Defense to Discrimination Claims

On March 10, 2022, the Wisconsin Supreme Court released its decision in Cree, Inc. v. Labor and Industry Review Commission, which provides significant clarity for employers evaluating whether a domestic-related crime of an employee or applicant is substantially related to a job and thus a lawful reason for discharging or not hiring the individual.

LIRC’s View of the ‘Substantially Related’ Defense to Arrest and Conviction Record Discrimination Claims: Will Recent Events in Waukesha Prompt Change?

Wisconsin is one of a limited number of states that prohibits discrimination in employment on the basis of arrest or conviction records. The Wisconsin Fair Employment Act (WFEA) protects “properly qualified individuals” from unlawful discrimination “by reason of their … arrest record[s] [or] conviction record[s].” Employers defending against claims of arrest- or conviction-record discrimination under the WFEA may raise a defense to liability that asks whether an employee’s or applicant’s charge or conviction “substantially relate[s] to the circumstances of the particular job[.]” That is, the WFEA provides that an employer is not prohibited from suspending an employee who is charged with a felony, misdemeanor, or other offense, or from refusing to employ an individual who is convicted of a crime that is substantially related to his or her position.

Maine’s New ‘Ban-the-Box’ Law: When Can Employers Inquire About Criminal Histories?

In July 2021, Maine enacted a new “ban-the-box” law that limits employer inquiries into an applicant’s criminal history. Under the new law, entitled “An Act Relating to Fair Chance in Employment,” employers are prohibited from including criminal history inquiries in an application, but can engage in such inquiries during an interview or once the employer has determined that the applicant is otherwise qualified for the position.

Louisiana Enacts Law Impacting Employer Consideration of Applicant Criminal Histories

On June 9, 2021, the Louisiana State Legislature passed House Bill (HB) No. 707, a measure that prohibits discrimination in employment based on criminal history records and that provides criteria for employers making hiring decisions in conjunction with criminal history records. This development will likely be good news for formerly arrested or incarcerated applicants reentering the workplace.

Supreme Court Provides Additional Guidance on FCRA Standing

On June 25, 2021, the Supreme Court of the United States issued a ruling that provides additional guidance related to the Fair Credit Reporting Act (FCRA), a federal law that regulates the collection of consumers’ credit information and access to their credit reports. In the employment context, the FCRA most frequently applies to background checks, including class actions alleging the most common background check claim—unlawful disclosure and authorization screens/forms (usually because of too much or too little information)—resulting in an informational injury.

Michigan Supreme Court Pushes Back Effective Date for Personal Identifying Information Restrictions on Court Records

In May 2019, the Michigan Supreme Court issued rules that when implemented  generally would prohibit Michigan courts from releasing personal identifying information (PII), such as birthdates, on court records. The rules were set to go into effect on July 1, 2021. Because consumer reporting agencies (CRAs) use PII to confirm the identities of the subjects of records and to comply with verification standards set forth in the Fair Credit Reporting Act (FCRA), CRAs would have been affected by the restrictions on access to court files, potentially impacting the timely and accurate release of background check information in Michigan.

Arizona’s New Law Affords Second Chances to Arizonans With Criminal Convictions

On April 1, 2021, Arizona Governor Doug Ducey signed into law House Bill (H.B.) 2067, which amends Arizona Revised Statute (A.R.S.) Section 13-905 to allow the courts to issue an order for a “Certificate of Second Chance” for individuals “whose judgment of guilt is set aside” after a criminal conviction. H.B. 2067 allows individuals who receive a Certificate of Second Chance the opportunity to apply for and obtain occupational licenses in Arizona, and provides some additional protections to employers, among other things.

Illinois Enacts Stronger Anti-Discrimination and Equal Pay Laws Focusing on Criminal Convictions and Demographic Reporting

In  2021, the Illinois General Assembly passed Senate Bill (SB) 1480, which amends the Illinois Human Rights Act, the Illinois Equal Pay Act, and the Illinois Business Corporation Act. On March 23, 2021, Governor J.B. Pritzker signed the bill into law.

Where to Open Shop: New Report Ranks the Best Places to Do Business in the U.S.

The COVID-19 pandemic continues to affect the global economy, and employers are increasingly considering which are the most and least employer-friendly places  new offices, distribution centers, and operational locations, both during the pandemic and after emerging from it. The Arizona State University Center for the Study of Economic Liberty recently released Doing Business North America 2020 (DBNA), a report analyzing and comparing data indicative of the regulatory context for business activity in a number of metropolitan areas. The report ranked 130 cities across Canada, Mexico, and the United States, based on 111 variables for determining where the best places to do business are currently (although given the ever-changing local, state, and federal landscapes, the assessment may change frequently). The variables underlying the rankings fall into six broad categories: starting a business; employing workers; obtaining electricity, land and space use; and paying taxes and resolving insolvency.

San Francisco Issues Guidance on COVID-19 ‘Temporary Right to Reemployment’ Ordinance

On August 7, 2020, the San Francisco Office of Economic and Workforce Development (OEWD) published guidance regarding the City of San Francisco’s “Temporary Right to Reemployment Following Layoff Due to COVID-19 Pandemic Emergency Ordinance.” Also known as the “Back to Work” emergency ordinance, the ordinance took effect on July 3, 2020, requiring San Francisco employers with 100 or more employees to offer reemployment to eligible employees laid off because of the COVID-19 pandemic when the employers rehire for the same or similar job classifications.

FDIC Loosens Requirements for Employment With Financial Institutions

On July 24, 2020, the Federal Deposit Insurance Corporation (FDIC) released a final rule to revise and codify into the agency’s regulations the FDIC’s Statement of Policy (SOP) on Section 19 of the Federal Deposit Insurance Act. Section 19 generally prohibits any person from participating in banking who has been convicted of a crime “involving dishonesty, breach of trust, or money laundering, or who has agreed to enter into a pretrial diversion or similar program in connection with a prosecution for any such offense,” without first obtaining written consent from the FDIC. The SOP provides guidance relating to Section 19 and the FDIC’s application of the statute.

Maryland Legislature Passes Hairstyle Discrimination, Facial Recognition in Hiring, Retaliation, and Equal Pay Laws

COVID-19 has certainly not slowed down legislators in Annapolis. Far from sitting idle, the Maryland General Assembly recently passed a broad array of workplace legislation without the governor’s signature. In addition to a significant expansion of Maryland’s  Worker Adjustment and Retraining Notification (WARN) Act, three new employment laws are set to take effect on October 1, 2020.

EEOC Greenlights Employer Requests of Information from Job Candidates for Federal Work Opportunity Tax Credit

On April 29, 2020, the Equal Employment Opportunity Commission (EEOC) issued an opinion letter reiterating its position that proper use of Internal Revenue Service Form 8850 for the Federal Work Opportunity Tax Credit (WOTC) does not violate federal equal employment opportunity laws.

Virginia Marijuana Bill to Bar Applicant Questions on Decriminalized Charges

On April 12, 2020, Virginia Governor Ralph Northam signaled his approval of—but has not yet signed—legislation (House Bill 972) that would decriminalize simple possession of marijuana. The impact of decriminalization on Virginia’s criminal process has been the highlight of the legislation, but the bill would also include restrictions that impact the application process for employers operating in the Commonwealth.

Colorado Becomes 13th State to Pass “Ban the Box” Legislation

On May 28, 2019, Colorado governor Jared Polis signed into law the Colorado Chance to Compete Act (House Bill 19-1025), more commonly known as “ban the box” legislation. The recently signed Act is another example of pro-employee legislative change that has taken place since the Democrats gained control of the state legislature in 2018.

 

New Mexico Passes Ban-the-Box and Expungement Laws

On April 3, 2019, New Mexico governor Michelle Lujan Grisham signed into law two bills related to criminal background checks that may affect employers operating in the state. The first is a ban-the-box law that prohibits private employers from inquiring about an applicant’s criminal history on an employment application. The second allows certain individuals to petition the court for expungement of criminal records.