Compliance Roundup: You’ve Asked – We’ve Answered! July 2023 Edition
You've asked...We've answered. HireRight compiled up the top questions we receive from HR professionals in our quarterly compliance webinar, and provided responses on topics like drug screening, pay equity, and more.
Compliance Roundup: You’ve Asked – We’ve Answered!
We know how difficult it can be to navigate the ever-changing legislation around HR compliance. HireRight hosts a webinar covering emerging legislation and litigation that impact employers’ screening programs each quarter. During the webinar, we field questions directly from HR professionals. We have compiled the top questions asked during the webinar and our responses. Some questions have been edited for brevity or clarity.
Ban the Box, Fair Chance, & Clean Slate Laws
Question: When did Connecticut’s clean slate law become effective?
Answer: Connecticut’s Clean Slate law, Public Act No. 21-32, became effective on January 1, 2023, and provides for the automatic erasure of certain criminal records. Classified or unclassified misdemeanors are automatically erased seven years after the date of the most recent judgment of conviction. Convictions for any class D or E felony and any unclassified felony offense carrying a term of imprisonment of not more than five years are automatically erased ten years after the date of the most recent judgment of conviction. Notably, there has been a delay in the implementation of Connecticut’s Clean Slate law. Currently, only eligible cannabis convictions have been expunged. Automatic expungement of other eligible convictions is to be determined.
Question: Does Washington have a clean slate law?
Answer: No. Washington does not have a law that provides for automatic expungement of criminal offenses. Non-convictions records can be expunged via petition to the Washington State Patrol. Criminal convictions are ineligible for expungement. However, some convictions can be vacated, subject to court review. Vacated records are not included in criminal reports.
Question: Does Maryland have a ban the box law?
Answer: Yes. Employers with at least 15 full-time employees may not inquire into a job applicant’s criminal history until after the first in-person interview. The ban the box law applies to “any work for pay and any form of vocational or educational training, with or without pay.” As such, temporary workers and independent contractors are in the scope of the law. Employers expressly required to inquire into an applicant’s criminal history before an initial interview under applicable state or federal law are exempted. Maryland’s ban the box law does not expressly require specific notices or assessments. By contrast, employers in Montgomery and Prince George’s Counties, Maryland, must provide a candidate with a notice identifying the specific criminal conduct that may disqualify them from hire.
Screening Compliance
Question: Did Colorado pass a law restricting an employer from requesting information that identifies a candidate’s age?
Answer: Yes. Effective July 1, 2024, Colorado’s Job Application Fairness Act (“JAFA”) will prohibit employers from asking individuals to provide age-related information as part of the initial employment application. Employers required by (I) “a bona fide occupational qualification pertaining to public or occupational safety,” (II) “a federal law or regulation,” or (III) “a state or local law or regulation based on a bona fide occupational qualification,” may ask an individual to verify compliance with age requirements. However, employers may not “require disclosure of an individual’s specific age, date of birth, or dates of attendance at or date of graduation from an educational institution on an initial employment application.”
Question: Are employers still permitted to conduct criminal background checks in California?
Answer: Yes. SB 809 was introduced in February and, if passed, would have prohibited most private employers from conducting criminal background checks, but it was not adopted. In brief, SB 809 would have restricted criminal background checks to only those employers who are legally required to bar employing workers with certain criminal histories. The bill would have also imposed additional notice and individualized assessment requirements. SB 809 was held in committee and did not progress further this legislative session. However, lawmakers may revisit the bill in the 2023-2024 legislative session.
Question: When was the Fair Credit Reporting Act (FCRA) Summary of Rights (SOR) revised?
Answer: A revised FCRA SOR was published on March 17, 2023. The new document must be implemented by March 20, 2024.
If an employer uses a consumer reporting agency like a background check vendor to request a background report on an individual for employment purposes, the FCRA requires that the employer provide a standalone written disclosure presented clearly and conspicuously to the subject of the background check and obtain that individual’s written authorization before making the background check request. The background check vendor or consumer reporting agency must provide a copy of the FCRA SRO. Additionally, before an employer can take a potentially adverse employment decision based in whole or in part on background check information, employers must follow the steps required by the FCRA’s pre-adverse and adverse action process. Employers must provide the subject of the background check with a copy of their background report, the FCRA SOR, and other information as provided by the FCRA. Employers are reminded that states and local jurisdictions may have additional notice requirements, in particular, related to ban the box or fair chance laws and laws that restrict an employer’s use of credit data.
Question: How can an individual dispute the accuracy or correctness of a background report completed by HireRight?
Answer: If an individual screened by HireRight believes that any information in their background report is inaccurate or incomplete, they may file a dispute with HireRight for free. In general, as provided by the Fair Credit Reporting Act, the dispute investigation process may take 30 days, with an additional 15 days allotted, depending on the nature, scope, and source of information being disputed. Please visit our Candidate FAQ page to file a dispute and for more details.
Pay Equity, Salary History Bans, & Wage Transparency Laws
Question: Where is wage transparency required?
Answer:
Jurisdiction | Effective Date | Scope | Includes independent contractors? | Disclose Benefits | Disclose Wage to Candidate | Disclose Wage to Current Workers |
|---|---|---|---|---|---|---|
Jan. 1, 2018 | Any employer in California | No | No | Upon request after interview | N/A | |
Mar. 13, 2020 | Business located in Cincinnati with fifteen or more employees in Cincinnati. | No | Yes | Upon request after conditional job offer | N/A | |
Jan. 1, 2021 | Any employer in Colorado | No | Yes | In job post | In job post | |
Oct. 1, 2021 | Any employer in Connecticut | Unclear – “any person permitted to work” | N/A | Upon request or before compensation offer | Upon request, hire, or job change | |
Jan. 1, 2024 | Fifty or more employees | No | N/A | In job post | N/A | |
Jan. 1, 2025 | Fifteen or more employees | No | Yes | In job post | In job post | |
September 1, 2022 | Four or more employees in Ithaca | No | N/A | In job post | In job post | |
Apr. 13, 2022 | Four or more employees; principal place of business in Jersey City, NJ | No | Yes | In job post | In job post | |
Oct. 1, 2020 | Any employer in Maryland | No | N/A | Upon request after application | N/A | |
Oct. 1, 2020 | Any employer in Nevada | No | N/A | After interview | After application or interview for promotion or transfer | |
Sept. 17, 2023 | Four or more employees | No | N/A | In job post | In job post | |
Nov. 1, 2022 | Four or more employees | Yes | No | In job post | In job post | |
Jan. 1, 2023 | Any employer in Rhode Island | No | N/A | Upon request after application & before compensation discussion | Upon request and at time of hire and promotion or transfer | |
Jan. 25, 2020 | Fifteen or more employees in Toledo | No | N/A | Upon request after conditional offer | N/A | |
Jan. 1, 2023 | Fifteen or more employees in Washington | No | Yes | Upon request after conditional offer | Upon request after offer of promotion or transfer | |
Nov. 6, 2022 | Four or more employees | No | N/A | In job post | In job post |
Question: Do pay transparency laws apply to independent contractors or freelance workers?
Answer: New York City’s law expressly identifies that independent contractors are in the scope of its pay transparency ordinance. Connecticut’s law is unclear in that it includes employees and any persons “permitted to work.” Guidance published by the Connecticut Department of Labor notes that the term “applicant” should be broadly construed. Therefore, it is possible that independent contractors may be included in the scope of Connecticut’s law. No other pay transparency law specifically identifies independent contractors as being under consideration by the measures.
Question: How do pay transparency laws work if an employer is headquartered in a state that does not require pay transparency but hires a worker in a jurisdiction that requires transparent pay disclosures?
Answer: If the business meets the threshold of the minimum number of employees as listed in the jurisdiction of the candidate’s work location, then the pay transparency law applies. For example, if an employer is headquartered in Florida but has four or more employees in New York, and the job candidate will work in New York, then New York’s pay transparency law applies. Please refer to the above chart to review the scope of pay transparency laws.
Question: How do pay transparency laws impact an employer that is fully remote and does not limit jobs to a specific location?
Answer: Employers may choose to adopt pay transparency across the board. Alternatively, employers will need to assess the scope of applicability of a pay transparency laws to determine if a salary range must be posted. For example, a salary range must be posted if an employer has any employees in Colorado. Please refer to the above chart to review the scope of pay transparency laws.
Question: Do pay transparency laws require that both minimum and maximum salary be disclosed?
Answer: Yes. Most wage transparency laws require that the minimum and maximum annual salary or hourly compensation range be disclosed within the job post or advertisement. The reason that a compensation range must be disclosed is to help avoid creating pay discrepancies by paying candidates outside of an established pay band.
Question: Are pay transparency laws focused on starting salary or expected pay throughout the job?
Answer: Pay transparency laws aim to mitigate discrepancies that may exist at the time of hire, which can persist throughout employment. The intent is to prohibit employers from “lowballing” candidates and instead pay them based on their merits and qualifications commensurate with the role.
Question: Can an employer state in a job requisition that candidates in jurisdictions that require pay transparency are ineligible to apply?
Answer: In general, employers cannot skirt pay transparency requirements for jobs that can be performed in a jurisdiction with an effective pay transparency law. For example, the Colorado Department of Labor and Employment (“CDLE”) released guidance on the Colorado Equal Pay for Equal Work Act (“EPEW”). The CDLE notes, part, a “remote job posting, even if it states that the employer will not accept Colorado applicants, remains covered by the [EPEW’s] transparency requirements.”
Cannabis Reform & Drug Testing
Question: When does Kentucky’s medical marijuana law become effective?
Answer: Beginning January 1, 2025, residents of Kentucky will be able to obtain a written certification from their medical practitioner demonstrating a qualified medical condition that permits application for a medical marijuana card. Currently, an Executive Order enables select Kentuckians and their caregivers to purchase medical marijuana in states where it is legal based on specific criteria. Kentucky’s medical marijuana law affords a medical marijuana patient the same rights as a prescription drug user. However, it does not require that employers permit or otherwise accommodate its use. Employers are allowed to maintain zero-tolerance or drug-free workplace policies that prohibit the possession of marijuana while onsite or on duty. Job candidates may be disqualified from hire, and current workers’ employment may be adversely impacted based on a positive drug test for THC. Read more on our blog.
Question: If we perform services under a federal contract or receive federal funding, can we conduct drug testing that includes marijuana in all jurisdictions?
Answer: Yes. All jurisdictions that have legalized medical or recreational marijuana permit testing for marijuana for roles supplying services under a federal contract or funding and disqualification of workers subject to the federal contract or funding who test positive for marijuana.
Question: Is a fork lifter driver considered a “safety sensitive” role that is exempted from laws that require that employers accommodate medical marijuana use?
Answer: While the laws of each jurisdiction differ concerning the scope of positions considered “safety sensitive,” all laws permit employers to prohibit any worker from being impaired while on the job or at the worksite.
Question: If we employ DOT-regulated drivers, can we conduct drug testing that includes marijuana in all jurisdictions?
Answer: Yes. All jurisdictions that have legalized medical or recreational marijuana permit testing for marijuana for DOT-regulated positions. Employers may also adversely impact the employment of a DOT-regulated driver who tests positive as required by applicable federal regulations.
Privacy, Tech & Employment Laws
Question: Could an Applicant Tracking System (ATS) that grades applications or filters resumes based on pre-screening questions be considered an “automated employment decision tool” that would be subject to a law that restricts an employer’s use of artificial intelligence in the employment lifecycle?
Answer: Yes. For example, New York City defines an “automated employment decision tool” as “ “any computational process, derived from machine learning, statistical modeling, data analytics, or artificial intelligence, that issues simplified output, including a score, classification, or recommendation” that is used to “substantially assist or replace discretionary decision making for making employment decisions that impact natural persons.” The acts of automatically grading or filtering applications or resumes would constitute an automated employment decision tool under New York City’s law.
Question: How can an employer assess and mitigate possible discrimination from employment decision tools using artificial intelligence?
Answer: Yes. The EEOC has published guidance that provides examples of possible discriminatory behaviors and tips to mitigate risks imparted when using artificial intelligence to assess job applicants and employees. More information can also be found on our artificial intelligence and in the employment lifecycle webinar.
I-9 & E-Verify
Question: Can an employer accept an expired Permanent Resident Card?
Answer: Yes. USCIS has extended the validity of Permanent Resident Cards (PRC) from 12 months to 24 months for lawful permanent residents who have filed Form I-90, Application to Replace Permanent Resident Card, to renew their PRC. When completing Form I-9, new employees may present an expiring or expired PRC with this receipt notice as a List A document that extends the PRC for 24 months from the card’s expiry date on the front of the card. Employers may not reverify current employees who presented this document in combination with the original 12-month extension when they originally completed Form I-9.
Question: If an employer uses a fully remote business model (e.g., does not have physical office space) or hires remote employees, do employment authorization documents need to be physically inspected?
Answer: Fully remote Employers should follow guidance issued by the US Citizenship and Immigration Services for completing Form I-9 for remote workers. Employers may also consider leveraging a service to help complete Form I-9 for remote workers.
HireRight’s 2023 Q2 Compliance Webinar
As the 2023 legislative season wanes, lawmakers have made waves with criminal history reform, pay equity and transparency, privacy and technology laws, and cannabis legalization. Register for our Q2 compliance webinar on Wednesday, July 19, 2023, at 11 AM PST as we help you navigate the waters with an overview of emerging legislation and litigation affecting employers, including actionable guidance in our mid-year compliance update.
All registrants will get a link to a recording of the webinar. Live attendees will receive 1.0 general recertification credit hour toward PHR, SPHR, and GPHR through the HR Certification Institute.
We hope you’ll join us!
Release Date: July 3, 2023
Alonzo Martinez
Alonzo Martinez is Associate General Counsel at HireRight, where he supports the company’s compliance, legal research, and thought leadership initiatives in the background screening industry. As a senior contributor at Forbes, Alonzo writes on employment legislation, criminal history reform, pay equity, AI discrimination laws, and the impact of legalized cannabis on employers. Recognized as an industry influencer, he shares insights through his weekly video updates, media appearances, podcasts, and HireRight's compliance webinar series. Alonzo's commitment to advancing industry knowledge ensures HireRight remains at the forefront of creating actionable compliance content.