Compliance Roundup: You’ve Asked – We’ve Answered! April 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.
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: How should employers assess a candidate’s criminal history?
Answer: In 2012, the Equal Employment Opportunity Commission (EEOC) published “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act.” The guidance identifies the following factors relevant to assessing whether adversely impacting an individual’s employment eligibility is job-related and consistent with business necessity:
The nature and gravity of the offense or conduct;
The time that has passed since the offense or conduct and/or completion of the sentence; and
The nature of the job held or sought. Any cases expunged are removed from the courts’ public indexes, cannot be identified, and are not reported.
The guidance also advises employers to consider the following factors as part of an individualized assessment of the candidate’s criminal history.
The facts or circumstances surrounding the offense or conduct;
The number of offenses for which the individual was convicted;
Older age at the time of conviction, or release from prison;
Evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct;
The length and consistency of employment history before and after the offense or conduct;
Rehabilitation efforts, e.g., education/training;
Employment or character references and any other information regarding fitness for the particular position; and
Whether the individual is bonded under a federal, state, or local bonding program.
While many State and local jurisdictions have generally adopted the EEOC’s guidance, some have differing requirements. More information can be found in our Ban the Box whitepaper.
Question: What are the specifics of the Los Angeles Fair Chance Ordinance (e.g., ban the box law)?
Answer: The City of Los Angeles Bureau of Contract Administration maintains a website that details the Ordinance. In brief, employers are prohibited from inquiring into a candidate’s criminal history until after a conditional offer of employment has been extended. An employer must engage in an interactive discussion with a candidate whose background contains criminal history. An individualized assessment must be conducted. The City makes an individualized assessment form available. Employers must use the City’s form or a substantially similar form as part of the process. The candidate must receive a copy of the individualized assessment as part of the pre-adverse process. The City has also published a sample letter for an employer’s reference. If an employer utilizes the letter, it will supplement the pre-adverse action letter. As part of the adverse action process, all qualified employers in California must identify a candidate’s right to file a complaint with the California Civil Rights Department (formerly the Department of Fair Employment and Housing).
More information can be found in our Ban the Box whitepaper.
Question: What are the specifics of the New York City Fair Chance Act (e.g., ban the box law)?
Answer: The New York City Human Rights Commission maintains a website that details the Act. In brief, employers are prohibited from inquiring into a candidate’s criminal history until after a conditional offer of employment has been extended. An employer must first determine whether a candidate is qualified for the position before extending a conditional offer. If, after a conditional offer, an employer may rescind the offer based on a criminal record, the employer must explain why using the City’s Fair Chance Notice or a substantially similar form. The candidate must be provided a copy of the background check and given five business days to respond. If the employer revokes the offer after an individualized assessment, the standard FCRA adverse action process may be used.
More information can be found in our Ban the Box whitepaper.
Question: What are the specifics of the Gainesville, FL Fair Chance Ordinance (e.g., ban the box law)?
Answer: Employers are prohibited from inquiring into a candidate’s criminal history until after the initial employment application. Employers must conduct an individualized assessment of a candidate’s criminal history and inform the candidate of the basis for their decision. Employers must provide the candidate with the opportunity to provide context concerning their criminal history and offer evidence of rehabilitation. If an employer adversely affects the candidate’s employment, they must include the following statement in the notice: “This notice is provided in accordance with the City of Gainesville Code of Ordinances, Chapter 14.5, Section 14.5-181, which regulates the process and timing of criminal background checks conducted on job applicants.”
More information can be found in our Ban the Box whitepaper.
Question: What are the specifics of Utah’s Clean Slate Act?
Answer: A clean slate law in Utah became effective in February 2022. Qualifying convictions cases are automatically expunged as follows:
Seven years for Class A drug possession,
Six years for Class B misdemeanors, and
Five years for Class C misdemeanors, infractions, and minor regulatory offenses.
Any cases expunged are removed from the courts’ public indexes, cannot be identified, and are not reported.
Question: What are the specifics of Connecticut’s Clean Slate Act?
Answer: Connecticut’s revised clean slate law became effective in January 2023. Qualifying convictions cases are automatically expunged as follows:
Seven years for any classified or unclassified misdemeanor offenses, and
Ten years for any class D or E felony or an unclassified felony carrying a term of imprisonment of five years or less.
Any cases expunged are removed from the courts’ public indexes, cannot be identified, and are not reported.
Employers are prohibited from requiring a candidate whose records have been automatically expunged to self-disclose those records or deny employment based on the candidate’s expunged criminal records or from inquiring about a candidate’s criminal history on an application for employment unless it contains a clear and conspicuous notice stating:
“(1) That the applicant is not required to disclose the existence of any arrest, criminal charge or conviction, the records of which have been erased pursuant to section 46b-146, 54-76o or 54-142a, (2) that criminal records subject to erasure pursuant to section 46b-146, 54-76o or 54-142a are records pertaining to a finding of delinquency or that a child was a member of a family with service needs, an adjudication as a youthful offender, a criminal charge that has been dismissed or nolled, a criminal charge for which the person has been found not guilty or a conviction for which the person received an absolute pardon, and (3) that any person whose criminal records have been erased pursuant to section 46b-146, 54-76o or 54-142a shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.”
Question: We are an employer in a jurisdiction without a ban-the-box law. We ask job applicants to self-disclose their criminal history as part of the initial job application. How should we handle remote workers?
Answer: As a best practice and to comply with several ban-the-box laws, many employers wait to inquire into a candidate’s criminal history until after extending a conditional job offer. Employers should then assess if they have sufficient workers in a jurisdiction to be subject to that jurisdiction’s ban-the-box law. Note that some jurisdictions include independent contractors and other non-employees in the count. Employers are reminded to comply with a jurisdiction’s ban-the-box law as applicable, which may consist of additional notice requirements and individualized assessments of a candidate’s criminal history. Many employers will adopt holistic adjudication and compliance practices regardless of a law’s applicability.
More information can be found in our Ban the Box whitepaper.
Question: Do ban-the-box laws apply to post-employment screening?
Answer: Yes, in limited cases. Some jurisdictions, such as New York City, require that employers comply with the City’s ban the box requirements, including providing a copy of New York Article 23-A, conducting an individualized assessment of the employee’s criminal history, and providing the employee with the individualized assessment on a requisite form.
More information can be found in our Ban the Box whitepaper.
Pay Equity, Salary History Bans, & Wage Transparency Laws
Question: How do pay transparency laws impact California employers?
Answer: Effective January 1, 2023, employers in California with 15 or more employees must post salary or hourly wage ranges in job advertisements or internal job postings.
Question: What are the specifics of Washington’s pay transparency law?
Answer: Washington’s wage transparency requirements apply to employers with 15 or more employees. Employers must disclose the wage scale or salary range and a general description of all benefits and other compensation to be offered. Employees offered an internal transfer or promotion must be provided the wage scale or salary range for the new position upon request. Washington’s wage transparency law became effective on January 1, 2023.
Question: To who does Rhode Island’s pay transparency law apply?
Answer: Any employer in Rhode Island. Please refer to the pay transparency summary at the end of this section.
Question: Which jurisdictions require that benefits are disclosed to the candidate?
Answer: Cincinnati, OH; Colorado; Jersey City, NJ; and Washington. Please refer to the pay transparency summary at the end of this section.
Question: Which jurisdictions require pay transparency for internal positions, such as promotions or transfer opportunities?
Answer: Albany County, NY; Colorado; Connecticut; Ithaca, NY; Jersy City, NJ; Nevada; New York; New York City, NY; Washington; and Westchester County, NY. Please refer to the pay transparency summary at the end of this section.
Summary of Pay Transparency Laws:
Jurisdiction | Effective Date | Scope | Disclose Benefits | Disclose Wage to Candidate | Disclose Wage to Employee |
|---|---|---|---|---|---|
Mar. 9, 2023 | Any employer in Albany County, NY | N/A | In job post | In job post | |
Jan. 1, 2018 | All employers with 15 or more employees | N/A | Upon request after interview | N/A | |
Mar. 13, 2020 | Business located in Cincinnati with fifteen or more employees in Cincinnati. | Yes | Upon request after conditional job offer | N/A | |
Jan. 1, 2021 | Any employer in Colorado | Yes | In job post | In job post | |
Oct. 1, 2021 | Any employer in Connecticut | N/A | Upon request or before compensation offer | Upon request, hire, or job change | |
September 1, 2022 | Four or more employees in Ithaca | N/A | In job post | In job post | |
Apr. 13, 2022 | Four or more employees; principal place of business in Jersey City, NJ | Yes | In job post | In job post | |
Oct. 1, 2020 | Any employer in Maryland | N/A | Upon request after application | N/A | |
Oct. 1, 2020 | Any employer in Nevada | N/A | After interview | After application or interview for promotion or transfer | |
Sept. 17, 2023 | All employers with four or more employees | N/A | In job post | In job post | |
Nov. 1, 2022 | All employers with four or more employees | No | In job post | In job post | |
Jan. 1, 2023 | Any employer in Rhode Island | 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 | N/A | Upon request after conditional offer | N/A | |
Jan. 1, 2023 | Fifteen or more employees in Washington | Yes | Upon request after conditional offer | Upon request after offer of promotion or transfer | |
Nov. 6, 2022 | All employers with four or more employees | N/A | In job post | In job post |
Question: Can an employer ask a candidate’s salary expectations in jurisdictions prohibiting employers from inquiring into a candidate’s former compensation?
Answer: Yes. While employers are generally prohibited from asking about any form of compensation, including current or prior wages, benefits, or commission history, employers may ask a candidate about their salary expectations.
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 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.
Cannabis Reform & Drug Testing
Question: What positions are exempted from Philadelphia’s ban on pre-employment marijuana testing?
Answer: The City permits pre-employment testing for marijuana if:
A federal or state statute or regulation requires it for safety or security purposes;
The federal government requires it as a condition of receiving a contract or grant; or
The terms of a collective bargaining agreement include it.
Pre-employment testing is also allowed if an employee’s work may significantly impact the health or safety of others. Exceptions are listed in Chapter 9-5502 of the Philadelphia Code.
Question: How should an employer treat a worker that resides in a state that has legalized marijuana but will work in a state where marijuana is illegal?
Answer: The law is unclear. Employers may provide potential job candidates with a copy of their drug testing policy which may note the laws of the job’s location control. However, employers should be mindful of anti-discrimination measures or reasonable accommodation requirements. As a result, an employer should review fringe cases with their legal counsel.
Question: Can employers adversely impact a medical or recreational user of marijuana in Maryland?
Answer: Employers are not prohibited from utilizing drug tests that screen for marijuana or adversely affect the employment of any user of marijuana. However, while the state’s medical marijuana law does not expressly require reasonable accommodation of medical marijuana users, employers should discuss the matter with their legal counsel as it has not yet been litigated before a court in Maryland.
Question: Could a person who consumes a CBD product test positive for THC?
Answer: CBD products that are federally regulated should be tested to ensure that the quantity of THC will not impact a drug test. Unregulated CBD products may contain amounts of THC that trigger a positive result. Read more in our blog.
Question: Can employers in Michigan adversely impact the employment of a marijuana user?
Answer: Yes. Michigan’s recreational marijuana law does not include anti-discrimination measures. Case law in Michigan suggests employers do not need to reasonably accommodate a qualifying medical marijuana patient’s use.
Question: How do changes to California’s marijuana laws impact employers?
Answer: Starting in July 2024, employers will be prohibited from discriminating against workers who use marijuana while off-duty and off-premises. California will also prohibit employers from adversely affecting the employment of a worker who tests positive for non-psychoactive cannabis metabolites. Psychoactive metabolites make some feel high, whereas a non-psychoactive metabolite does not indicate impairment, only that cannabis was recently used. The law does not impact an employer’s ability to deny marijuana users in specific safety-sensitive or other federally regulated jobs. Employers subject to the law may need to adjust drug testing panels, collection methods, policies, and processes to ensure that only non-psychoactive cannabis metabolites are reported.
Question: If we employ workers in FAA-regulated positions or 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 FAA or DOT-regulated positions. Employers may also adversely impact the employment of an FAA or DOT-regulated worker who tests positive as required by applicable federal regulations.
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: Does Virginia permit reasonable suspicion testing or post-accident testing?
Answer: Yes. Virginia places no restrictions on employers for reasonable suspicion or post-accident drug screening.
Privacy, Tech & Employment Laws
Question: What is in the scope of the Illinois Artificial Video Interview Act?
Answer: The Illinois Artificial Intelligence Video Interview Act became effective on January 1, 2020.
Under the AI Video Interview Act, employers that record video interviews and use AI technology to analyze applicants’ suitability for employment must:
Provide prior notice to the applicant that AI may be used to analyze the applicant’s video interview and evaluate the applicant’s fitness for the position;
provide the applicant information before the interview explaining how the AI works and what general types of characteristics it uses to evaluate applicants; and
obtain the applicant’s consent to be assessed by AI technology.
Employers are prohibited from sharing a candidate’s video with others except those whose expertise or technology is necessary to evaluate the candidate’s fitness for the position.
Candidates can request that a video be deleted – and an employer must destroy the video within 30 days of a candidate’s request.
Recent amendments are intended to confront racial bias and AI. Employers who rely solely on AI to determine if a candidate gets an in-person interview would have to submit demographic information – specifically, (i) the race and ethnicity of applicants who are and who are not selected for an in-person interview after the use of AI analysis; and (ii) the race and ethnicity of applicants who are hired.
Required demographic information must be reported to the state’s regulator annually. The regulator will analyze the demographic information and assess if there is evidence of racial bias by the employer’s use of AI solutions.
Question: What is in the scope of Maryland’s facial recognition technology law?
Answer: HB 1202 prohibits an employer’s use of facial recognition technology during an applicant’s interview unless the applicant consents by signing a written waiver.
A “Facial recognition service” is defined as “technology that analyses facial features and is used for recognition or persistent tracking of individuals in still or video images.
A “Facial template” is defined as “the machine-interpretable pattern of facial features that are extracted from one or more images of an individual by a facial recognition service.”
In practical application, if an employer uses artificial intelligence in video interviews, where a facial template is collected and analyzed, the solution may be in the scope of Maryland’s law.
Employers must obtain a signed waiver providing the applicant’s consent stating:
the applicant’s name;
the date of the interview;
that the applicant consents to the use of facial recognition during the interview; and
whether the applicant read the consent waiver.
Maryland’s law became effective on October 1, 2020.
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: 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: What are the best practices for completing the I-9 process for remote hires?
Answer: US Citizenship and Immigration Services (USCIS) has issued longstanding guidance, which notes, “Employers may designate an authorized representative to fill out Forms I-9 on behalf of their company, including personnel officers, foremen, agents, or notary public.” However, the guidance disclaims that the “information on [the] page is out of date.” The page does not provide clarity regarding an updated process. Of note, as a result of the Covid-19 pandemic, Immigration and Customs Enforcement (ICE) issued guidance to employers noting that “as of April 1, 2021, the requirement that employers inspect employees’ Form I-9 identity and employment eligibility documentation in-person applies only to those employees who physically report to work at a company location on any regular, consistent, or predictable basis.” Employees who work exclusively in a remote setting due to Covid-19-related precautions are temporarily exempt from in-person inspection of a worker’s employment authorization documents. Employers can review the worker’s employment authorization documents virtually and enter “COVID-19” as the reason for the physical inspection delay in Section 2 of Form I-9. However, the guidance does not address workers hired in permanent remote positions. Therefore, employers will need to engage with their legal counsel to assess their compliance obligations in light of the lack of clarity offered by the Department of Homeland Security. Employers may also consider leveraging a service to help complete Form I-9 for remote workers.
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 expiration 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: When was the deadline for updating I-9s completed with expired List B documents?
Answer: If an employee presented an expired List B document between May 1, 2020, and April 30, 2022, employers were required to update their Forms I-9 by July 31, 2022. If the worker is still employed, the employer should have requested that the employee provide an unexpired List A or B document as applicable. The employer should enter the title, issuing authority, number, and expiration date of the newly presented document in the “Additional Information” field of Section 2. The employer should have initialed and dated the change. If the worker is no longer employed, no action is required. More information can be found here.
Question: Is there a new Form I-9?
Answer: The current Form I-9 is labeled OMB No. 1615-0047, which expired 10/31/2022. USCIS issued guidance noting employers should continue using Form I-9 after its expiration until further notice.
HireRight’s 2023 Q1 Compliance Webinar
As the 2023 legislative season matures, lawmakers are providing insight into their legislative agendas. While the bills introduced echo similar themes from years past, social causes advancing candidates’ rights are evolving to do more with less – including embracing progression at the state and local levels.
Join Alonzo Martinez, HireRight’s Associate General Counsel, for an overview of emerging legislation and litigation affecting employers, including clean slate and ban-the-box laws, pay equity and transparency measures, and marijuana reform.
When: April 26, 2023, at 2 p.m. ET / 11 a.m. PT
What: 2023 Q1 Update Webinar: Navigating Compliance
Who: Alonzo Martinez, Associate General Counsel, HireRight
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: April 12, 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.