On April 9, 2019, the New York City legislature passed legislation that would amend Section 8-107 of the New York City Administrative Code to prohibit employers from testing job applicants for marijuana or tetrahydrocannabinols (THC) – the active ingredient in marijuana. Specifically, the law states, “it shall be an unlawful discriminatory practice for an employer, labor organization, employment agency, or agent thereof to require a prospective employee to submit to testing for the presence of any tetrahydrocannabinols or marijuana in such prospective employee’s system as a condition of employment.” The legislation creates an exception for individuals who apply to specifically defined roles; such as police officers or peace officers, those requiring a commercial driver’s license, those requiring the supervision or care of children, medical patients, or other vulnerable persons, and those with the “potential to significantly impact the health or safety of employees or members of the public.” Furthermore, the law would not apply to drug testing that is required pursuant to: (a) regulations promulgated by the federal department of transportation; (b) federal contracts; (c) a federal or state law, regulation, or order that requires drug testing of prospective employees for purposes of safety or security; or (d) a collective...
Tagged: Background Checks
On March 14, 2016, the amendments to Philadelphia’s “ban the box” law went into effect. The amendments to the city’s Fair Criminal Record Screenings Standards Ordinance (the “Ordinance”), signed into law by Philadelphia’s then Mayor, Michael Nutter, on December 15, 2015, create additional restrictions under the Ordinance on how and when an employer may consider a prospective employee’s criminal background during the application process (beginning when an applicant makes an employment inquiry and ending when the employer has extended a conditional offer of employment).
Employers must be aware of the changes to the New York City Administrative Code effective October 27, 2015, which prohibits employers from asking applicants regarding their criminal histories (typically called “Ban the Box”) prior to a conditional offer of employment. Under the new law called the Fair Chance Act (the “Act”) – which affects employers of four or more employees – employers may not (1) ask the applicant during an interview, (2) include a question on an application, or (3) conduct a separate search using public sources, such as the internet, to elicit information regarding an applicant’s criminal convictions or arrest records. The Act contains limited exceptions for persons who apply for law enforcement positions or for licenses concerning the regulation of firearms and explosives. Also, the Act does not prevent an employer from conducting a background check required by state, federal or local law that mandates criminal background checks or that bars employment based on a criminal history. An example of such requirement is regulations of a self-regulatory organization such as FINRA.
Effective October 1, 2015, employers in the State of Connecticut are restricted from requiring or requesting employees and job applicants to provide access to “personal online accounts,” which include email, social media and retail-based Internet web sites used exclusively for personal reasons. Specifically, the new law (Public Act No. 15-6) (“the Act”), prohibits employers from requesting or requiring employees or job applicants to: provide the username and password, password, or other means of authentication to access an individual’s personal online account; authenticate or access a personal online account for the employer to view; or invite an employer to accept an invitation or be compelled to accept an invitation from an employer to join a group related to a personal online account.
On May 6, 2015, New York City Mayor, Bill De Blasio, signed legislation proposed by the City of New York likely to limit an employer’s ability to use credit checks when making hiring and retention decisions. The law goes into effect 120 days from May 6, 2015, or on September 3, 2015. We analyzed the new law in detail in a recent blog.
The City of New York likely will tighten the reins on an employer’s ability to use credit checks when making hiring and retention decisions. The City Council approved a bill that would amend the New York City Human Rights Law, § 8-102 et seq. (“NYCHRL”) to prohibit an employer, labor organization, employment agency, or their agents from using an applicant’s or employee’s “consumer credit history” for employment purposes or to otherwise discriminate against an applicant or employee based on consumer credit history. If the legislation is signed by the Mayor – on whose desk the proposed bill now sits – it will go into effect within 120 days after the Mayor signs.
New EEOC/FTC Joint Informal Guidance on Employers’ Use of Background Checks into Workers’ Criminal Records
On March 10, 2014, the Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission (FTC) issued their first joint guidance on employer use of background checks in hiring or firing decisions. The use of background checks by employers in personnel decisions is becoming a more tricky road to navigate. The EEOC enforces the Federal anti-discrimination laws and the FTC enforces the Fair Credit Reporting Act (FCRA), all of which can be implicated in the background check process, particularly when a third party credit reporting agency becomes involved. The EEOC/FTC joint guidance is reduced to two brief, non-technical documents — one for employers and another for job applicants respectively–called “Background Checks: What Employers Need to Know,” and “Background Checks: What Job Applicants and Employees Should Know.” The guidance for employers describes the information and documentation in a background check report that may be used lawfully to make personnel decisions about a job applicant or employee. The document for applicants identifies the employer’s obligations particularly when relying upon a background check to disqualify an applicant or employee.
On August 29, 2013, Governor Chris Christie signed a bill that prohibits most employers from requiring employees or prospective employees to disclose user names and passwords for social networking accounts like Facebook, Twitter and LinkedIn. The new law, which goes into effect December 1, 2013, makes New Jersey the 13th state to enact legislation protecting the social networking accounts of employees. The Gibbons Employment Law Alert previously covered the proposed bill before it became law.
As previously reported, the group of individuals protected by the New York City Human Rights Law (“NYCHRL”) has been expanded to cover the status of being “unemployed.” The Amendment to the NYCHRL — which goes into effect June 11, 2013 — prohibits discrimination against job applicants because they are unemployed. The NYCHRL provides for a private right of action against employers.
At the Gibbons Second Annual Employment & Labor Law Conference last month, one panel discussion focused on the Equal Employment Opportunity Commission’s (“EEOC”) recent activity and enforcement priorities. Among the panelists were Corrado Gigante, Director of the Newark Area Office of the EEOC, and Gibbons Directors, Christine Amalfe, Kelly Ann Bird and Susan Nardone.