OD Comply: Background Checks is different than other products on the market because Ogletree Deakins doesn’t just tell you about the laws—we actually provide you with the forms, letters, and documents you need to conduct the most common types of background checks in all 50 states.
We also tell you what you can do with the information once you receive it from your background check company/consumer reporting agency (“CRA”) – i.e., what the restrictions are on employer consideration and use of background check information. For example, in Massachusetts, employers may not rely on first-time convictions for certain misdemeanors. In New York, convictions must be job-related, which has been defined very specifically and narrowly. In New York City, background check disclosures generally may not provided and authorizations cannot be collected until after a conditional offer of employment. State restrictions like these are in plain English, in an easy-to-use format.
As an OD Comply: Background Checks subscriber, not only do we get you into compliance, but we keep you in compliance. For example, in the last few months alone, OD Comply: Background Checks subscribers have received alerts providing them with information, forms, and documents to comply with new Oregon, New York City, and Philadelphia restrictions. We also monitor litigation trends, to spot new arguments and theories, to revise forms, letters, and process before you are the target of the latest and greatest new background check theory, cause of action, etc.
Unfortunately, the federal Fair Credit Reporting Act (“FCRA”) places the liability on employers—not background check companies/CRAs—for noncompliant background check forms and documents. Additionally, your contract with your CRA likely places liability on you (and you alone as the employer) for noncompliant forms and documents. In short, while many CRAs have good intentions, they generally have no legal responsibility for non-compliant disclosure & authorization forms. We have seen lots of CRA-drafted forms that are unlawful and non-compliant.
CRAs will give you the results of a background check, but they typically won’t advise you as to what information employers can and cannot use and consider in making an employment decision. In fact, while CRAs should remove from background check reports information the CRA is not allowed to provide, the reports typically contain information employers are not allowed to consider in making employment decisions. The OD Comply materials provide guidance on what information you can and cannot consider, helping insulate you from liability for consideration of improper information.
Yes, the OD Comply: Background Checks materials provide you the tools to conduct credit checks, as well as criminal checks, in all 50 states. In the past few years, several states have passed laws that prohibit/substantially limit credit checks. As part of your OD Comply: Background Checks subscription, we will keep you updated as states continue to pass legislation limiting credit checks, when that affects the background check forms, letters, documents, or restrictions on employer inquiries or use of background check information.
Most employers need the 50-state forms and the 50-state summary of restrictions on employer inquiries or use because there often are multiple (sometimes non-obvious) state laws applicable to a single applicant/employee. For background checks, applicable state laws include (a) the law of the state in which the office/facility/work site is located, as well as (b) the law of the state in which the applicant/employee resides at the time the disclosure & authorization form is signed or background check is conducted. For example, if a Connecticut resident applies to or is employed at a New York facility/location, both Connecticut and New York background check law and requirements apply.
Because most employers receive applications from a variety of states (not just those in which the company has offices/facilities), use of 50-state forms/screens is the best approach. Most employers also need the 50-state summary in order to determine (a) whether you can even conduct a certain type of background check in a particular state, (b) which background check questions you can and cannot ask about, and (c) what you can do with background check information once they receive it. In Illinois, for example, there are specific requirements for an employer even to run a credit background check. In New Jersey, for example there are specific requirements for use of conviction information (but no such restrictions on the background check company/CRA’s ability to include this kind of conviction information in an employer’s background check report, making it very common for employers to receive background check information they cannot use).
In the event you don’t need 50-state coverage, we are happy to work with you to provide a customized, non-subscription set of forms, letters, and documents to meet your needs.
No. CRAs remove from a background check report any information the CRA is not allowed to provide you as the employer. All other information – including information you are prohibited from considering or using in your employment decision – often remains in the background check report.
OD Comply: E-signatures includes electronic consent language that complies with federal law (the Electronic Signatures in Global and National Commerce Act (“E-SIGN”)) and the electronic transactions acts of all 50 states and the District of Columbia, as well as a memorandum explaining electronic consent requirements.
Federal E-SIGN applies when another law requires a document to be provided “in writing” (e.g., the federal Fair Credit Reporting Act requires that the background check Disclosure & Authorization form be provided to applicants/employees in writing). State laws apply more broadly than federal E-SIGN, and apply regardless of whether another law requires the document to be provided in writing (e.g., in most states, the employment application). Therefore, because OD Comply: E-signatures’ electronic consent language complies with both federal and state law, it has broad application—not only to the on-boarding process, but to employment documents used throughout the employment process as well.
Most employers need the 50-state electronic consent language and memorandum because there often are multiple (sometimes non-obvious) state laws applicable to a single applicant/employee. For electronic signatures, applicable state laws may include (a) the law of the state in which the office/facility is located, as well as (b) the law of the state in which the applicant/employee resides at the time the electronic signature is obtained. For example, if an Arizona resident applies to or is employed at a California facility/location, both Arizona and California electronic signature law and requirements apply.
Even if you do not do business in all 50 states, you may receive applications for employment from many different states. This is especially true if your employment applications are accessible to applicants online. Therefore, use of electronic consent language that complies with the law of all 50 states is the best approach.
Unfortunately, federal E-SIGN places very specific disclosure requirements on employers—including at least ten individual disclosures that must be provided to applicants/employees to authorize electronic signatures. While state requirements are less cumbersome than federal law, there are some specific state law requirements as well. While many e-signature software companies or applicant tracking software companies have good intentions, they generally have no legal responsibility for a non-compliant electronic signature language. We have seen many examples of electronic signature language that is unlawful and non-compliant. A quick, easy way to determine if your electronic signature language complies with federal e-signature requirements is whether it (a) gives individuals the right to withdraw their consent after the consent is given and any consequences or fees associated with such withdrawal; (b) describes the procedures for such withdrawal; and (c) provides the hardware and software requirements for retention of and access to the electronic records.
A number of state laws require that employment applications have particular questions or notices to applicants on a broad range of topics including criminal background check questions, use of lie detector tests, and other disclaimer language needed in order to preserve the employment at-will relationship. Employment applications being used by most employers are not compliant with state laws in all 50 states. The OD Comply employment applications are compliant with employment laws in all 50 states and the District of Columbia.
Even if you do not do business in all 50 states, you may receive applications for employment from many different states. This is especially true if your employment applications are accessible to applicants online. To provide the most protection, the application form should comply with the law in the state where the job is located as well as the state where the applicant resides and receives/completes the application. For example, you may have a facility in Massachusetts yet have applicants from surrounding states like Connecticut, Rhode Island, New York, Vermont, and New Hampshire. Thus, multiple state laws may affect the legality of your employment application.
Even though you may use a third-party background check company/consumer reporting agency (“CRA”), if you ask questions on an employment application form concerning an applicant’s criminal background history, your application must comply with applicable state law. That state law varies from jurisdiction to jurisdiction. Currently, two states and one metropolitan city prohibit employers from seeking any information regarding an applicant’s criminal background history at the application stage of the hiring process (commonly referred to as “ban-the-box” legislation). Moreover, a majority of states throughout the country have some legislation or advisory opinions regarding the criminal background information that employers may lawfully ask on an employment application. If you are currently requesting criminal background check information on your employment application form, there is a substantial likelihood that it is non-compliant in some states.
We recognize that employers may want to use their forms, templates, logos, etc., and we provide subscribers with template employment application forms in Word format so that they can add logos, etc. While the OD Comply employment application forms may be used for a variety of job positions and are designed be used in their entirety, subscribers may cut and paste substantive legal questions and legal information, based on their particular needs, from the OD Comply template employment application forms into their own employment application. If you choose this approach, please use caution and take great care not to omit any related notices or other item (e.g., you shouldn’t cut and paste the criminal conviction questions without also including the accompanying state notices), since a number of the notices contained in the employment application forms have legal significance under the applicable state employment laws.
States are rapidly implementing new medical and recreational marijuana legalization laws, as well as amending existing laws. These laws vary widely from state to state, and the burden on employers to remain informed on this rapidly evolving area is immense. Legal claims against employers by applicants and employees who use marijuana have dramatically increased in the past few years—a trend that will continue as more states legalize marijuana and provide employment protections for individuals who use marijuana. For example, prior to 2017, courts routinely determined that medical marijuana users could not assert viable legal claims in employment matters. Since then, the landscape has significantly changed, and will continue to do so in the future.
OD Comply: Marijuana provides a plain-English solution for employers to stay informed, remain compliant with state and major locality marijuana legalization laws, and be aware of related issues affecting the workplace such as disability accommodation and drug testing for marijuana. OD Comply: Marijuana is more than a digest of laws or a 50-state survey. The subscription includes practical, business-centric insights as well as template forms, letters, and documents that employers can use to manage these challenging issues.
OD Comply: Marijuana does the hard work for you. The subscription helps you remain compliant and deal with the increasingly difficult issue of marijuana use and the workplace. We stay abreast of the ever-changing landscape of marijuana legalization laws and the many related issues, including (all in the marijuana context) drug testing, disability discrimination and accommodation, workplace safety, potential exceptions to compliance with state marijuana laws, compliance for government contractors, and compliance with federal laws and regulations. We also monitor litigation trends to help you unpack this confusing (and sometimes conflicting) area of the law. OD Comply: Marijuana provides you with all of this information and more in an accurate, timely, reader-friendly, practical manner. When you subscribe to OD Comply: Marijuana, you’re not just subscribing to a legal treatise; you’re also subscribing to a frequently updated, interactive, and business-centric tool to assist you in achieving legal compliance.
OD Comply: Marijuana addresses all of the following and more:
- Medical marijuana laws
- Recreational marijuana laws
- Employment protections for individuals who use medical or recreational marijuana
- The relationship between medical marijuana and disability discrimination and accommodation laws
- The impact of legalized marijuana on government contractors
- The impact of legalized marijuana on federally regulated job positions
- Drug testing laws that impact marijuana testing
- Best practices for employers
- Court decisions addressing marijuana issues in the workplace
- CBD products and their interplay with marijuana laws
- Plain-English summaries of marijuana laws in all 50 states and the District of Columbia
- Summaries of relevant court decisions
- Best practices and key takeaways for employers
- A decision tree on how to analyze marijuana-related employment issues
- Template forms, documents, and letters to assist with disability discrimination and accommodation, drug testing, reasonable suspicion, and statutory compliance issues
- Timely email updates alerting subscribers to key developments, including legislation and court decisions
- A complimentary 30-minute consultation call as an introduction to OD Comply: Marijuana
Yes, marijuana remains illegal under federal law, but courts routinely recognize and enforce state marijuana legalization laws. Importantly, while marijuana remains a Schedule I drug under the federal Controlled Substances Act, employers are not prohibited from employing individuals who engage in “illegal” acts. The “marijuana is illegal under federal law” defense is no longer a sound basis for employers to ignore state marijuana laws.
No. While a drug test is the most frequent way in which employers learn that an applicant or employee is using marijuana, employers must be aware about—and ensure their compliance with—medical and recreational marijuana legalization laws, disability discrimination and accommodation laws, and other related laws.
States are rapidly implementing or amending laws related to marijuana. If your state has not yet legalized marijuana, it is likely that it will soon. If your state already has legalized marijuana, additional changes to the laws inevitably will occur. Staying one step ahead is critical, and a thorough understanding of how other states and courts deal with marijuana issues can provide helpful information for employers in evaluating and responding to employment-related marijuana issues.
If you are an employer that operates in multiple states, the OD Comply: State Wage and Hour Summary will provide you easy access to a variety of specific state wage and hour laws impacting your business. The state wage and hour summary will be provided in two formats: (1) organized by state, and (2) organized by wage and hour category/topic. Both will be searchable and will help you stay compliant in the various states in which you do business.
We have included those topics that affect employers on a routine basis, including:
- Minimum wage and overtime requirements
- Maximum tip credit toward minimum wage
- Minimum cash wage toward minimum wage
- Meal breaks and rest breaks
- Notice required before reduction in pay
- Payment of vacation upon termination
- Direct deposit
- Electronic pay cards
- Electronic/paper paystubs
- Deductions from employees’ pay
- Payment upon termination
- Frequency of payment
- Report-to-work pay
If you are an employer that operates in multiple states throughout the country, the OD Comply: State Leave Law Summary will provide you easy access to a variety of state-specific leave laws impacting your business. The State Leave Law Summary portal allows users access to a broad range of leave topics that can be organized and printed or downloaded by state or by leave category/topic. Both will be searchable and will help you stay compliant in the various states in which you do business.
The types of leave specifically addressed include leave for:
- Blood donation;
- Bone marrow transplant;
- Civil Air Patrol;
- Court attendance (for witnesses, litigants, and the parents or guardians of juveniles);
- Crime victim;
- Domestic/sexual violence;
- Elected/Legislative officials’ duty;
- Election/polling officials’ duty;
- Emergency responder/volunteer firefighter/volunteer ambulance driver;
- Family and medical – adoption/birth;
- Family and medical – pregnancy disability;
- Family and medical –sick leave;
- Family and medical – state FMLA-like requirements;
- Jury duty;
- Legislative committee witness;
- Literacy education;
- Military family/spouse;
- Organ donation;
- Political activity;
- Quarantine/public health emergency;
- School activities/visitation;
- Substance abuse/rehabilitation;
- Veterans Day; and
In addition, many clients have inquired about compliance assistance with paid sick leave requirements that have arisen on a state and local basis. Although the OD Comply: State Leave Law Summary is intended for state leave compliance purposes, we have included local paid sick leave requirements as an added feature for subscribers.
The OD Comply materials are located on our online Portal (www.ODComply.com), which is accessible at any time by computer, smartphone, or tablet.
A company can have as many users as needed, within reason. We recommend that you provide access to only those users that you feel comfortable interpreting the information to make decisions on sometimes complicated legal issues. Most new subscribers start with a group of core users and then expand that group as needed.
We will update the five OD Complysubscriptions (Background Checks, Employment Applications, Marijuana, State Leaves, and State Wage & Hour) when the law changes, to ensure that you have up-to-date forms, letters, and 50-state summaries (as applicable). We provide email notifications to all users, summarizing any new developments and directing users to documents and information stored on the OD Comply Portal. OD Comply: E-Signatures is a product for which there are no updates. OD Comply: E-Signatures is a one-time product (i.e., with no legal updates) whereas other OD Comply products are subscriptions (i.e., for which updates are provided) because e-signature law has traditionally not been as fluid or changeable as the law in the areas covered by the OD Comply subscriptions (e.g., background checks, employment applications, etc.).
The OD Comply materials are reader-friendly, so we do not anticipate a lot of questions about implementation. While we will be happy to answer a limited number of questions about the materials, any questions regarding more detailed, specific, or individual advice — related to the materials or any customization of the materials — are outside the subscription and will be billed at hourly rates. Subscribers may contact the authors of the subscription products for individual advice or customization of the forms, letters, etc. as follows:
Yes, for all but the OD Comply: Employment Application subscription and the OD Comply: E-signatures product (since it is difficult to create an excerpt of a single document like the employment application and the e-signature Electronic Consent). Please complete this form and select the subscriptions to which you would like to receive samples.
Yes, please complete this form and share that you wish to attend a demo. Our team will reach out to you promptly to schedule a session.