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.
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.
The Ninth Circuit recently issued two mostly pro-employer federal Fair Credit Reporting Act (FCRA) background check decisions.
On August 6, 2019, in State of Texas v. Equal Employment Opportunity Commission, the U.S. Court of Appeals for the Fifth Circuit ruled that the Equal Employment Opportunity Commission (EEOC) overstepped its limited rulemaking and enforcement power when it issued its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.
Westchester County, New York, which is located on the outskirts of the New York City metropolitan area, has enacted a ban-the-box law that places limits on an employer’s ability to make preemployment inquiries into and statements about a job applicant’s criminal history.
On October 1, 2018, San Francisco’s amendments to its Fair Chance Ordinance (FCO) took effect. The FCO is San Francisco’s “ban the box” equivalent that regulates employers’ use of applicants’ and employees’ arrest and conviction information.
On September 24, 2018, the U.S. Equal Employment Opportunity Commission (EEOC) reaffirmed the importance of following its 2012 enforcement guidance on employer use of criminal history information—specifically the EEOC’s targeted screening process and individualized assessment process–when it announced a voluntary agreement with large furniture retailer Rooms To Go.
On September 12, 2018, the Consumer Financial Protection Bureau (CFPB) issued an interim final rule updating its A Summary of Your Rights Under the Fair Credit Reporting Act form, (“Summary of Rights”) which is required to be given by employers to applicants and employees at various points in the background check process.
Twenty years ago, on a warm summer day, Hawaii enacted a restriction on employer inquiries into an applicant’s work history until after a conditional offer of employment. Intended to give applicants with criminal histories a fair shot at employment, the law—the first state “ban the box” law—crystalized a movement that, in time, would yield similar restrictions in 12 states and 17 localities (for private employers). The result is a crisscrossing jumble of requirements with little uniformity, putting employers in a difficult position when dealing with applicants (and sometimes even existing employees) in different jurisdictions.
On February 1, 2018, the City Council of Kansas City, Missouri, enacted a ban-the-box ordinance that limits an employer’s use of an individual’s criminal history in making hiring or promotional decisions. The ordinance will go into effect on June 9, 2018.
On December 20, 2017, New Jersey Governor Chris Christie signed into law Senate Bill 3306, which expands the state’s ban-the-box law by explicitly prohibiting employers from inquiring into an applicant’s expunged criminal history.
New York City has issued new rules interpreting the city’s Fair Chance Act (FCA). These rules, which went into effect on August 5, 2017, provide clarification and guidance on how employers can comply with the requirements of the FCA, the city’s restrictive “ban the box” law which prohibits (with few exceptions) employers from inquiring about or considering an individual’s criminal history until after a conditional offer of employment is extended.
On February 15, 2017, Washington, D.C., Mayor Muriel Bowser signed into law the District of Columbia’s Fair Credit in Employment Amendment Act of 2016 (FCEAA). This Act, which amends the District’s Human Rights Act of 1977, follows other jurisdictions, such as New York City and Philadelphia, in significantly restricting an employer’s ability to inquire into or use an applicant’s or employee’s credit history in making employment decisions.
On January 20, 2017, the Ninth Circuit became the first court of appeals to weigh in on several important legal issues for expensive, increasingly common background check class actions—specifically (a) the extraneous content and language in an employer’s background check disclosure forms and online screens that violate the federal Fair Credit Reporting Act (FCRA), and (b) the standing requirements to file background check claims. In Syed v. M-I, LLC, the Ninth Circuit held that (1) inclusion of a liability release in an employment background check disclosure is a willful violation of the FCRA, subjecting an employer to expensive statutory and punitive damages, and (2) this kind of violation results in a concrete harm that satisfies Article III standing, as recently clarified by the Supreme Court of the United States in Spokeo, Inc. v. Robins.
California recently amended its existing law governing inquiries into and the use of juvenile criminal information. Effective January 1, 2017 employers will be restricted from asking about, seeking, or using a California applicant/employee’s juvenile criminal history in the employment context.
The legal showdown between the State of Texas and the Equal Employment Opportunity Commission (EEOC) over the agency’s background check guidance took another turn on September 23, 2016, when the Fifth Circuit Court of Appeals issued an order withdrawing its previous June opinion and remanding the case to U.S. District Court for the Northern District of Texas. The June 2016 opinion had allowed Texas to proceed with its lawsuit against the EEOC. This order comes on the heels of the Supreme Court’s recent decision in United States Army Corps of Engineers v. Hawkes Co., Inc., 136 S.Ct. 1807 (2016), which examined when a federal agency’s decisions can be challenged in court.
Portland, Oregon’s ban-the-box law, the Removing Barriers to Employment Ordinance, took effect on July 1, 2016. The ordinance prohibits most Portland employers from asking about an applicant’s criminal history or conducting a background check on an applicant until after a conditional offer of employment has been made.
A new Philadelphia ordinance amending the City’s Fair Practices Act goes into effect on July 7, 2016. The amendment severely limits an employer’s ability to procure and use credit information on most applicants and employees and also limits references to credit checks on an employer’s background check disclosure and authorization forms. With these new provisions, Philadelphia continues to vie with New York City for the title of the country’s most draconian background check law.
On May 16, 2016, the Supreme Court of the United States decided a case, Spokeo, Inc. v. Robins, (No. 13–1339), involving standing to maintain an action in federal court. In the Spokeo case, an individual claimed that a search engine company willfully failed to comply with the Fair Credit Reporting Act (FCRA) by providing inaccurate information about him, among other violations. According to the Supreme Court’s decisions, the Ninth Circuit Court of Appeals wrongly concluded that the individual had properly pleaded injury in fact as required by Article III of the U.S. Constitution and because the Ninth Circuit had failed to consider both aspects of the injury-in-fact requirement, the appeals court’s standing analysis was incomplete.
On February 16, 2016, the New York City Commission on Human Rights issued proposed rules related to the city’s Fair Chance Act (FCA)—the restrictive ban-the-box law that went into effect in October of 2015 and prohibits employers from inquiring about an individual’s criminal record until after a conditional offer of employment is extended.
As we previously reported, New York City’s Fair Chance Act (FCA) went into effect on October 27, 2015. On November 5, 2015, the New York City Commission on Human Rights (NYCCHR or Commission) issued long-anticipated guidance on the FCA. Although the Commission’s website indicates that the guidance will be subject to future rulemaking, the guidance is effective as of November 5, 2015. The summary below is of the guidance as it currently stands.
As we previously reported in July and June, New York City recently passed the Fair Chance Act (FCA), which becomes effective on Tuesday, October 27, 2015, and is applicable to criminal background checks.
As we previously reported, New York City recently passed a law prohibiting employers from requesting or using an individual’s credit history in making employment decisions. On September 3, 2015—the same day that the new law went into effect—the New York City Commission on Human Rights (Commission) issued official guidance on the new law, now called the Stop Credit Discrimination in Employment Act (SCDEA).
During the upcoming holiday season, many companies—especially those with retail operations—will be looking to expand their available workforce by hiring seasonal workers. Unfortunately, many of these temporary workers will be hired without much scrutiny. Although this approach is understandable given the frenzied pace of the holiday season, it is a…..
On March 10, 2014, the U.S. Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission (FTC) jointly released two pamphlets on the use of background checks in the workplace: (a) one directed at employers and (b) the other at applicants and employees. The two documents, Background Checks: What Employers…..
Effective November 1, 2013, Seattle will restrict the use of criminal background checks by employers. The ordinance is broad in scope and covers all private employers with one or more employees in a position that will be performed, in whole or in substantial part (at least 50 percent of the…..
On May 23, 2013, Nevada became the tenth state to enact legislation restricting the use of credit background checks by employers. The new Nevada law goes into effect on October 1, 2013. Under the terms of the new Nevada law, it is unlawful for an employer to: directly or indirectly require, request,…..