News and Legislative Updates

On May 7, 2013, the Federal Trade Commission (FTC) announced that it issued letters to ten data broker companies warning that their practices could violate the Fair Credit Reporting Act (FCRA).

According to the press release, “Data broker companies that collect, distribute or sell this information are considered consumer reporting agencies under the FCRA, meaning they must reasonably verify the identities of their customers and make sure that these customers have a legitimate purpose for receiving the information. This requirement ensures that the privacy of sensitive consumer report information is protected. Of the 45 companies contacted by the FTC staff in the test-shopper operation, ten appear to violate the FCRA by offering to provide the information without complying with the law’s requirements.”

Governor Martin O’Malley signed SB 4 last week, making Maryland the ninth state to Ban the Box by removing questions about criminal history from state job applications and postponing such questions until later in the hiring process.

In Maryland, ban the box applies to state applications  and prohibits authorities in the Judicial, Legislative and Executive branches of the Maryland State Government from inquiring into an applicant’s criminal history until after the applicant has been interviewed. SB 4 does not prevent notifications to applicants that certain previous criminal convictions may prohibit employment eligibility.

A bill that would prohibit employers from forcing workers or applicants from turning over their Facebook passwords or other personal internet information appears to be moving forward in the Oregon Senate, according to The Oregonian.

Last month, House Bill 2654 passed the House. The bill would prohibit employers from compelling employee or applicant for employment to provide access to personal social media account or to add employer to social media contact list; prohibits retaliation by employer against employee or applicant for refusal to provide access to accounts or to add employer to contact list.The bill stipulates that an employer could still ask for material posted on social media if they are investigating employee misconduct or the security of their business-related information.

On March 7, 2013, the U.S. Citizenship and Immigration Services (USCIS) issued a new and revised Employment Eligibility Verification Form I-9.  The new Form replaces all other forms.  Beginning May 7, 2013, employers must use the new version of the Form (only) for all new hires and for re-verifying current employees with expiring employment authorization documentation.

Improvements to Form I-9 include new fields, reformatting to reduce errors, and clearer instructions to both employees and employers. The Department of Homeland Security has published a Notice in the Federal Register informing employers of the new Form I-9.

Effective July 1, 2013, Colorado becomes the ninth state to restrict an employer’s right to obtain and use credit information for making employment decisions. Colorado joins California, Connecticut, Hawaii, Illinois, Maryland, Oregon, Vermont and Washington.

Senate bill 13-018 – signed into law by Governor Hickenlooper on April 19 – creates the "Employment Opportunity Act", which specifies the purposes for which consumer credit information (i.e., consumer credit reports and credit scores) can be used by an employer or potential employer (jointly referred to as "employer" and excludes any state or local law enforcement agency).

The newly –released comprehensive immigration bill (S. 744) would require all U.S. employers to use E-Verify, an Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. More specifically, E-Verify requires employers to submit Form I-9 information for comparison with the Social Security Administration (SSA) and the Department of Homeland Security (DHS).

As part of the E-Verify system, every non-citizen will be required to show their “biometric work authorization card,” or their “biometric green card.” These photographs will be stored in the E-Verify system. In order for the non-citizen to be cleared for a job, the picture on the card presented by the employee to the employer will have to exactly match the identical picture the employer has on the E-Verify system. The employer must certify that the photograph presented in person matches the identical photograph in the system.

On April 17, 2013, the U.S. Department of Health and Human Services Office of Inspector General (OIG) released its updated Provider Self-Disclosure Protocol (SDP), that offers health care providers , suppliers and other individuals or entities, guidance on how to disclose potential fraud, avoid prosecution, and mitigate potential penalties under the OIG's civil money penalty (CMP) authority. The updated SDP replaces the OIG’s previous protocol published in 1998 and three subsequent OIG Open Letters from 2006, 2008, and 2009.

Over the past 15 years, the OIG has resolved over 800 disclosures, resulting in recoveries of more than $280 million to the Federal health care programs.

New Mexico now makes it illegal for an employer to request or require a prospective employee to provide a password to gain access to the applicant’s account or profile on a social networking website, or to demand access in any manner to the applicant’s account or profile on such a website.

With limited exception (e.g., devices supplied by employer, accounts provided by employer for business purposes, cooperation in certain investigations), employers in Utah may not request that an employee or job applicant disclose a username or password, or a password that allows access to the employee or applicant’s personal Internet account. Employers also may not penalize an employee or applicant for failing to disclose such information.

The Kansas legislature passed SB 149 and Governor Brownback signed the legislation on April 16, 2013, requiring the Department for Children and Families to establish a drug screening program by January 1, 2014 for current applicants and recipients of cash assistance.

The law stipulates there needs to be reasonable suspicion that the person is using controlled substances. The suspicion can be based on a person’s demeanor, missed appointments, police records, termination from previous employment due to substance use or prior drug screening records. If the drug test result is positive the person is required to complete a substance abuse treatment program and a job skills program. Those who refuse to take the test or participate in the treatment and job skills program are ineligible for benefits.

OPENonline, a leading provider of employment background screening services, will host a complimentary webinar for HR professionals regarding the use of criminal records in the hiring process. The webinar, “Does Ban the Box Mean Ban the Background Check?” will take place on April 25, 2013 at 2:00 p.m. and will be led Karen Kontras, Certified Safe Hiring Specialist and Compliance and Quality Assurance Administrator at OPENonline.

The webinar is part of OPENonline’s Continued Compliance Education series and serves as a follow up to the successful White Paper, “Protecting your Rights or Disguising your Past? How the once unknown Ban the Box movement has sparked a nationwide debate.”