February 2018 Screening Compliance Update

Federal Developments

EEOC’s Background Check Guidance Suffers Loss in Texas Federal Court
On February 1, 2018, a federal judge enjoined the EEOC and U.S. Attorney General from enforcing against the State of Texas the EEOC’s 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (the “Guidance”). The judge granted summary judgment for the State of Texas on the narrow basis of the EEOC’s issuance of the Guidance without providing notice to the public and an opportunity to comment, as required under the Administrative Procedures Act (APA). Although the injunction itself is specific to the State of Texas, the order opens the door to other similar lawsuits against the EEOC and is likely to push the EEOC to reconsider the Guidance.

EEOC Guidance and State of Texas Lawsuit
The Guidance sets forth the EEOC’s position that employers should carefully consider criminal records in making hiring decisions to avoid running afoul of Title VII. Among other requirements, the Guidance takes the position that in almost all circumstances, an employer must make an “individualized assessment” before disqualifying an individual for employment based on past criminal conduct. In 2013, the State of Texas sued the EEOC and the U.S. Attorney General challenging the Guidance asserting the state’s right to refuse to hire convicted felons without further consideration. After years of wrangling over standing and other procedural issues, the parties ultimately moved for summary judgment in September 2017, which the district court granted in part to Texas.

The Summary Judgment Motion
In moving for summary judgment, Texas asked the district court to declare that Texas has an absolute right to bar convicted felons from working for the State or legislature in any manner. The district court declined to do so, acknowledging that, although felons would pose too great a risk for “many categories of employment,” there may be other positions where felons pose no objectively reasonable risk to the interests of Texas and its citizens such that Texas’s broad rule denies meaningful opportunities of employment. The court also denied Texas’s request for an injunction preventing the EEOC from issuing right-to-sue letters in charges alleging discrimination based on criminal history information since issuance of those letters is not a ruling on the merits by the EEOC. In granting part of Texas’s summary judgment motion, the district court agreed with Texas that the Guidance did not comply with the APA requirements for promulgating substantive rules. Specifically, the district court agreed that the EEOC issued the Guidance—a substantive rule—without providing notice and the opportunity for comment. As such, the district court blocked the EEOC and the U.S. Attorney General from enforcing the guidance against the State of Texas until the EEOC complies with the APA’s notice and comment requirements for substantive rules. The court declined to rule on Texas’s arguments that the Guidance is also unlawful because it is outside the scope of statutory authority given to the EEOC and an unreasonable interpretation of Title VII, holding that such a ruling would be moot and premature.

Conclusion
Despite a slew of setbacks, the EEOC is continuing to press lawsuits against employers concerning the use of criminal records for hiring and other employment purposes. It remains to be seen how the EEOC will react to the ruling in Texas, including whether it will push the EEOC to reconsider the Guidance and issue anew for public comment. Meanwhile, employers throughout the U.S. should continue to monitor developments in this and related areas of the law, including and in particular developments related to the so-called “ban-the-box” laws and under the Fair Credit Reporting Act.
https://www.lexology.com/library/detail.aspx?g=98a80600-7040-4dc5-9e66-a20e740b8833&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2018-02-07&utm_term

CFPB Publishes List of Consumer Reporting Agencies
On January 30th, the CFPB released its 2018 list of consumer reporting agencies (CRAs). The list includes the three nationwide consumer reporting agencies and other companies that focus on specific markets and consumer segments. The list also includes tips and other information:

  • Information needed to request a report, including company names and contact information;
  • Identity verification information used by CRAs to identify consumers;
  • Information on which companies provide free reports and credit scores; and
  • Updated security freeze information.

https://www.consumerfinance.gov/about-us/blog/know-your-data-our-latest-list-consumer-reporting-companies/

Court Cases

GIS Class Action Settlement
General Information Solutions has agreed to pay $704,000 to settle a class action lawsuit alleging the background check agency violated the Fair Credit Reporting Act. Plaintiff David Gebhardt originally brought this background check class action lawsuit in November 2015. He alleges defendant General Information Solutions LLC has been violating the federal Fair Credit Reporting Act in the information it presents in persons’ background check reports. General Information Solutions was formerly known as General Information Services Inc. Gebhardt was later joined by co-plaintiffs Jesse Hale and Rondo Tyus. Hale later withdrew his claims, and Gebhardt reached his own settlement with the defendants, leaving Tyus as the sole named plaintiff and class representative. According to Tyus, General Information Solutions has been improperly reporting old, non-criminal ordinance violations in its background check reports, in violation of the Fair Credit Reporting Act. Under the FCRA, purveyors of such reports may not report “[c]ivil suits, civil judgments, and records of arrest that from the date of entry, antedate the report by more than seven years …” The FCRA also prohibits reporting “[a]ny other adverse item of information, other than records of convictions of crimes which antedates the report by more than seven years.” Tyus alleges that his own background check report from the defendant, produced in 2014, improperly disclosed his 2003 ordinance violation for disorderly conduct. This violation was both non-criminal and more than seven years old, Tyus says. For both those reasons, it should not have appeared on his background check report. Under terms of the settlement, General Information Solutions agrees to put up a settlement fund worth $704,000.
https://topclassactions.com/lawsuit-settlements/closed-settlements/821905-general-information-solutions-background-check-class-action-settlement/
http://www.tyusvgissettlement.com/admin/services/connectedapps.cms.extensions/1.0.0.0/asset?id=90c6960f-82ef-451b-9b90-81011ed903e1&inline=true

Recent Pay Equity Cases Show that such Cases are Ill-Suited for Class Treatment
Over the past few years we have seen groundbreaking changes to equal pay laws across the country and this trend does not seem to be slowing down. Pay equity litigation is also on the rise and we are now seeing more pay equity cases come into the spotlight, including putative class actions brought on behalf of groups of employees. Some recent examples include Ellis v. Google, Inc., No. CGC-17-561299 (Cal. Sup. Ct. Sept. 14, 2017), and Knepper v. Ogletree, Deakins, Nash, Smoak & Stewart, P.C., No. 3:2018-cv-00304 (N.D. Cal. Jan. 12, 2018. An overarching question we have to ask, however, is whether these types of pay equity cases are really appropriate for class treatment given the individualized inquiries that are necessary when analyzing pay differences. We believe they are not.

The Knepper Case
Knepper v. Ogletree, Deakins, Nash, Smoak & Stewart, P.C., No. 3:2018-cv-00304 (N.D. Cal. Jan. 12, 2018) is the latest in a wave of putative class actions alleging pay equity claims. In Knepper, a non-equity shareholder of the law firm Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (“Ogletree”) alleges that “Ogletree’s female shareholders face discrimination in pay, promotions, and other unequal opportunities in the terms and conditions of their employment.” Plaintiff asserts nine causes of action against Ogletree, including discrimination and retaliation claims under Title VII, the federal Equal Pay Act, the California Fair Employment and Housing Act, and the California Equal Pay Act (as amended by the Fair Pay Act), as well as a California Business and Professions Code claim and a claim under the California Private Attorneys General Act. Plaintiff purports to bring these claims on behalf of all similarly situated Ogletree female non-equity shareholders.

The Requirements for Class Certification
A party seeking class certification “has the burden to establish the existence of both an ascertainable class and a well-defined community of interest among class members.” Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal. 4th 319, 326 (2004). “[C]lass members are `ascertainable’ where they may be readily identified without unreasonable expense or time by reference to official records.'” Ghazaryan v. Diva Limousine, Ltd., 169 Cal. App. 4th 1524, 1532 (2008) (citing Lee v. Dynamex, Inc. 166 Cal. App. 4th 1325, 1334 (2008)). The community of interest requirement has three elements: (1) the predominance of common questions of law or fact; (2) the typicality of claims and defenses of the class representatives; and (3) the adequacy of the class representatives. Sav-On, 34 Cal. 4th at 326. The court must also find based upon the evidence in the record that a class action is “superior” to an individualized resolution of the issues. Bascurco v. 21st Century Ins., 108 Cal. App. 4th 110, 120 (2003).

The Difficulty of Identifying an Ascertainable Class
Ascertainability is particularly difficult to establish in pay equity cases such as Knepper where the class definition includes a broad category of employees, some of whom may have valid claims, but many of whom have suffered no pay disparity, and nothing in the class definition provides any basis for determining which of the class members may have valid claims. Courts recognize that “class certification can be denied for lack of ascertainability when the proposed definition is overbroad, and the plaintiff offers no means by which only those class members who have claims can be identified from those who should not be included in the class.” Ghazaryan, 169 Cal. App. 4th at 1533 n.8. In Knepper, similar to the proposed class in Ellis v. Google, the class definition does not purport to distinguish between female non-equity shareholders who may have valid claims against Ogletree based upon its alleged conduct from those who do not, and is therefore overbroad. See Ellis v. Google, Inc., No. CGC-17-561299 (Cal. Sup. Ct. Dec. 4, 2017).

No Community of Interest Exists in Pay Equity Class Actions
Pay equity cases such as Knepper are also ill-suited for class treatment because there is not a well-defined community of interest among class members. Knepper alleges that Ogletree “has subjected female non-equity shareholders to a pattern and practice of systemic unlawful disparate treatment and unlawful disparate impact discrimination” that “stem[s] from the Firm’s common employment policies, practices, and procedures, including Ogletree’s credit allocation, compensation, job assignment, and promotion policies, practices, and procedures.” On its surface, these allegations sound common, but you cannot tell on the basis of the complaint what, if anything, about the existence of common policies, practices and procedures disproportionately disfavors women. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). Knepper attempts to make this connection by referencing the fact that the majority of Ogletree’s shareholders are male, as well as the discretionary distribution of credits, job assignments and business development opportunities and the subjective judgment that goes into shareholder compensation decisions. However, Knepper must identify a common direction made to shareholders that would lead them to exercise their discretion in a common way. Merely alleging a general policy of discrimination and showing an overall sex-based disparity does not suffice. We also note that any such means of identifying those non-equity female shareholders who were disproportionately paid less than their male comparators would necessarily involve a fact-specific inquiry into the various considerations that influence each individual’s pay. This is generally not information that can be easily obtained by referencing employer records alone. Rather, to get the full story, a more in-depth analysis will likely be required. Knepper may argue that neither a common policy nor any discriminatory intent is necessary or required to sustain a claim under the California Fair Pay Act; but while that is true, it does not change the fact that commonality is necessary for class treatment. To the extent disparities do exist, an individual analysis is also necessary to determine whether an employer has a lawful reason that explains the pay disparity. Employers are entitled to present evidence to show that a class member’s work is in fact dissimilar to the alleged comparators (in terms of skill, effort or responsibility or performed under dissimilar working conditions), and/or that pay differences are the result of lawful factors such as pay differentials that are attributable to an employer’s gender-neutral pay policy, or other bona fide factors unrelated to gender, such as differences in education, training, performance or experience, that are job-related and consistent with an overriding legitimate business purpose.
https://www.lexology.com/library/detail.aspx?g=5f9734d8-2320-4a94-86d3-7049cc743adf&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2018-02-07&utm_term

District Judge Invalidates FACTA Settlement Based on Spokeo
A district judge in the Southern District of Florida recently dismissed a FACTA class action on Spokeo grounds even though he had previously approved a near-$600,000 settlement in the same case. In 2016, lead plaintiff Eric Kirchein filed suit against Pet Supermarket, Inc., contending that the retailer violated the Fair and Accurate Credit Transactions Act (“FACTA”) when it printed more than five digits of his and other consumers’ credit card numbers on sales receipts. The parties reached a preliminary settlement agreement later that year, with Pet Supermarket agreeing to pay $580,000 to a class of almost 30,000 consumers. The deal ran into trouble soon thereafter, as the parties had difficulty finding and locating individual class members. Further complicating matters, the size of the class increased, as Pet Supermarket discovered the class was approximately ten percent larger than initially thought. Plaintiffs’ counsel requested additional settlement funds to compensate for the additional class members, leading the parties to try to renegotiate the settlement. Despite these issues, the court declined requests to vacate the settlement agreement. Even though the parties had an agreement in principal, Pet Supermarket later challenged the court’s subject matter jurisdiction based on Spokeo grounds. The court agreed with the retailer that Kirchein could not show he had suffered concrete harm resulting from the alleged FACTA violation. Judge Robert N. Scola, Jr. chiefly relied on his own previous decisions in similar FACTA cases—specifically Gesten v. Burger King, which found that the plaintiff failed to allege that any disclosure of his private information actually occurred—to reach a similar conclusion regarding Kirchein’s claims. Without any allegation that his private data had been divulged, the court found that Kirchein could not establish standing. Though the court acknowledged that there was “substantive work that remains to be done” in the case, the absence of subject matter jurisdiction prevented further activity by the court, including a fairness hearing or issuing an order approving the proposed settlement agreement.
https://www.lexology.com/library/detail.aspx?g=84e59995-1f6a-4e5c-aae7-3178c62a5d1d&utm_source=lexology+daily+newsfeed&utm_medium=html+email+-+body+-+general+section&utm_campaign=acc+newsstand+subscriber+daily+feed&utm_content=lexology+daily+newsfeed+2018-02-20&utm_term

State Developments

City of Kansas City Missouri Adopts Ban the Box Ordinance for All “Employers”
On February 2, 2018, the City of Kansas City Missouri (“KCMO” or “the City”) adopted a “Ban the Box” ordinance that applies to private and public employers. The KCMO “Criminal Records in Employment” ordinance enacts a new section, Section 38-104. The ordinance becomes effective on June 9, 2018. Before this ordinance, employers located in KCMO were encouraged, but not required, to limit the extent to which they based employment-decisions on an applicant’s criminal history. The new Section 38-104 clearly and unambiguously places limitations on the extent to which all “employers” (both public and private) located in KCMO can take an applicant or current employee’s criminal history into account when making employment decisions. (The City has applied a similar rule to its own employment procedures since 2013.).

KCMO’s 2013 Ban the Box Ordinance
In 2013, the KCMO City Council passed an ordinance (Ordinance No. 130230) directing the City Manager to eliminate the field requiring disclosure of past criminal history records from all of the City’s employment applications. Ordinance No. 130230 also required the City to “make final employment-related decisions based on all of the information related to an applicant’s criminal history available to the City, including the nature and gravity of the offense or offenses, the time that has passed since the applicant’s conviction or release from incarceration, the nature of the job sought and its relevance to the offense, and all evidence of rehabilitation.” Notably, Ordinance No. 130230 concludes by stating that the City “urges private employers to adopt fair hiring practices that encourage the rehabilitation of people with criminal records.” (emphasis added). With the 2018 passage of Section 38-104, KCMO is no longer just urging private employers to follow those practices; it is now requiring them to do so.

KCMO’s 2018 Ban the Box Ordinance
Under Section 38-104, it is unlawful for an “employer” (which is defined in Section 38-1(a)(13) as any person employing six or more employees) to base “hiring or promotional decisions on an applicant’s ‘criminal history’ or sentence related thereto, unless the employer can demonstrate that the employment-related decision was based on all information available including consideration of the frequency, recentness, and severity of a criminal record and that the record was reasonably related to the duties and responsibilities of the position.” See 38-104(a)(1). Section 38-104 also makes it unlawful for an employer “to inquire about an applicant’s criminal history until after it has been determined that the individual is otherwise qualified for the position, and only after the applicant has been interviewed for the position. Such inquiry may be made of all applicants who are within the final selection pool of candidates from which a job will be filled.” See 38-104(a)(2). However, the new prohibitions “do not apply to positions where employers are required to exclude applicants with certain criminal convictions from employment due to local, state or federal law or regulation.” See 38-104(b). It is important to note that the term “criminal history” is a term of art that is specifically defined by Section 38-1 (31): “Criminal history means a record of conviction, or a plea of guilty or no contest, to a violation of a federal or state criminal statute or municipal ordinance; records of arrests not followed by a valid conviction; convictions which have been, pursuant to law, annulled, or expunged; pleas of guilty without conviction; convictions for which a person received a suspended disposition of sentence; and misdemeanor convictions where no jail sentence can be imposed.”

The complaint procedure and resolution process for alleged violations of the ordinance are stated in Section 38-23. Similar to charges of discrimination filed under the Missouri Human Rights Act, complaints claiming violations of Section 38-104 must be filed with the Human Relations Department for the City of Kansas City Missouri within 180 days of the alleged discriminatory conduct. See Section 38-23(a)(2). If the City finds probable cause that there is a violation and the matter cannot be voluntarily conciliated, then the matter will be referred to the city counselor for possible prosecution in municipal court. See Section 38-23(e).

Key Takeaways
All employers employing six or more people in the City of Kansas City Missouri, whether public or private, are required to follow the new Ban the Box ordinance, Section 38-104.

Under Section 38-104, employers are prohibited from making inquiries into an applicant’s criminal history prior to determining whether the applicant is qualified for the position and until after the applicant has been interviewed for the position.

Under Section 38-104, once a proper inquiry is made, the employer must do a totality of the circumstances review of the person’s criminal history as it relates to the particular job at issue. Unless required to do so by state, federal, or local law, an employer cannot maintain a rule which automatically rejects anyone with a prior criminal conviction.

Once a proper inquiry is made, an employer may maintain a practice of asking all final applicants for their criminal history. However, the information gathered in response must be carefully reviewed and used in the manner described in number 3, above.
https://www.lexology.com/library/detail.aspx?g=b81feafa-1a3b-49d1-9194-45e6b5fa258d&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2018-02-07&utm_term

Washington House votes to ‘Ban the Box’
Washington employers wouldn’t be able to have prospective workers fill out an application asking if they’ve been arrested under a bill approved Wednesday by the House. The Fair Chance Act, more commonly known as the “Ban the Box” bill, passed on a mostly partisan vote after supporters said it was important to give people a second chance and opponents said was unfair to businesses.
http://www.spokesman.com/stories/2018/feb/07/washington-house-votes-to-ban-the-box/

Maine Employers Must Ignore Off-Work Marijuana Use, Cease Testing Applicants
On February 1, 2018, Maine became the first jurisdiction in the nation to protect workers from adverse employment action based on their use of marijuana and marijuana products, provided the use occurs away from the workplace. In preparation for this change, the Maine Department of Labor has removed marijuana from the list of drugs for which an employer may test in its “model” applicant drug-testing policy. Although wrangling between the state legislature and Governor Paul LePage has delayed the retail sale of marijuana, the remaining provisions of Maine’s “Question 1 – An Act to Legalize Marijuana” (“the Act”), are slated to move forward despite fears doing so will hurt business in the state.

How Maine Came to Embrace Recreational Marijuana
On November 8, 2016, Maine voters approved the Act, permitting the recreational use, retail sale and taxation of marijuana. Although the law was originally scheduled to take effect on January 30, 2017, the Maine legislature imposed a moratorium on retail sales and taxation (as well as employment anti-discrimination provisions) in order to provide additional time to promulgate rules on marijuana sale and taxation, and to resolve other outstanding issues. The new effective date for those portions of the Act was pushed to February 1, 2018, although as described below, the state has yet to finalize rules that will permit the retail sale of marijuana and marijuana products. Significantly for employers, the employment anti-discrimination provisions of the Act are set to become effective February 1, 2018. The anti-discrimination provisions of the Act prohibit employers from refusing to employ or otherwise penalizing any person age 21 or older based on that person’s “consuming marijuana outside the employer’s property.” However, regardless of where marijuana is consumed, the Act allows employers to prohibit the use and possession of marijuana and marijuana products “in the workplace” and to “discipline employees who are under the influence of marijuana in the workplace.” According to a spokesperson from the Maine Department of Labor, who spoke to the legislature in July, a positive drug test alone will not suffice to demonstrate that a worker was “under the influence” of marijuana. Given the current posture of the law, from February 1, 2018 forward, employers with lawful workplace drug-testing policies implemented in accordance with Maine law will need to assess compliance approaches, risks and risk tolerance in connection with marijuana policy prohibitions, continued marijuana testing and adverse action, if any, based on verified confirmed positive marijuana test results. The law does not affect compliance with federally mandated testing for marijuana, such as testing under U.S. Department of Transportation regulations of certain commercial motor vehicle drivers or related prohibitions on marijuana use. It remains to be seen whether the non-discrimination provisions contained in the law will be enforced by the courts, especially given the conflict between federal and state law. More information, including links and updates on the most recent gubernatorial and legislative developments, can be found at the recreational marijuana web page established by the Maine legislature at http://legislature.maine.gov/9419.
https://www.lexology.com/library/detail.aspx?g=4c620c45-d332-41a5-b09e-91607f24fdb4&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2018-02-01&utm_term

New Jersey’s Recreational Marijuana Bill Introduced in the Senate
Bill that would legalize the recreational use of marijuana introduced in the New Jersey Senate.

Both during the campaign and after being elected, New Jersey Governor Phil Murphy made clear that he will support legalizing the recreational use of marijuana in New Jersey. On Tuesday, January 9, 2018, that campaign promise took one step closer to becoming a reality, when New Jersey Senator Nicholas Scutari introduced Senate Bill No. 830.

What’s New?
S830 permits individuals 21 years old and older to possess up to 1 ounce of marijuana, 16 ounces of marijuana-infused products in solids, 72 ounces in liquid form, 7 grams of concentrate, and up to six immature plants. The bill further establishes the Division of Marijuana Enforcement, which is charged with regulating the industry.

  • In the Workplace: The bill explicitly states that employers do not have to accommodate the use or possession of marijuana in the workplace. In addition, employers may have policies that prohibit marijuana use or intoxication during working hours.
  • Outside the Workplace: The bill makes it unlawful for an employer to take any adverse employment action against an employee based on an individual’s use of marijuana unless the employer has a rational basis for doing so. Therefore, the bill would affect an employer’s ability to discipline or discharge an employee due to the individual’s off-duty use of marijuana.

What Actions do Employers Need to Take?
New Jersey employers must prepare for the legalization of recreational marijuana. Employers should review their handbooks, job descriptions, and policies to establish how they will respond to employees’ use of marijuana and to ensure conformity with the potential changes in the law.

Employers further must be cognizant of the fact that marijuana remains classified as a Schedule I drug by the Drug Enforcement Administration and illegal under federal law. Therefore, employers should consult with counsel on how the interplay between federal and state law impacts their business.
https://www.lexology.com/library/detail.aspx?g=4bd68cc6-5033-4c7f-be53-c34d51b65e6e&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2018-02-01&utm_term

Can Michigan Employers Terminate Employees Who Lawfully Use Medical Marijuana?
Since 2008, when the Michigan Medical Marijuana Act (the “MMMA”) went into effect, employers in Michigan have been presented with new and nuanced issues related to how the new marijuana law would impact employment-related decisions. Can an employee with a medical marijuana card be fired for testing positive for marijuana and, if so, can the employee collect unemployment benefits?

Can an Employee with a Medical Marijuana Card be Fired for Failing a Drug Test?
The MMMA does not place any limits or restrictions on workplace drug testing. Therefore, regardless of whether an employee may lawfully use medical marijuana, they may be tested for drugs in accordance with established drug testing programs. This includes unionized employees, although drug testing is a mandatory subject of collective bargaining. An employee who fails a drug test may be fired for violating a drug free workplace policy – again, regardless of whether they have a marijuana card or not. The MMMA does not regulate private employment nor protect against termination from private employment. It only provides a potential defense against criminal prosecution or some other adverse action by the state.

An employer terminating an employee for marijuana use must still proceed carefully. Just because its actions may not violate the MMMA, they may still give rise to, for example, a claim for discrimination or retaliation, or a claim for defamation if the reason for termination is publicized and the test result was a false positive.

Can a Terminated Employee with a Medical Marijuana Card Collect Unemployment Benefits?
An employee who possesses a valid marijuana card and is terminated solely for testing positive for marijuana may be able to collect unemployment benefits. The Michigan Court of Appeals considered this issue in the recent case of Braska v. Challenge Manufacturing Co. In this case, the court stated:

“Claimants tested positive for marijuana and would ordinarily have been disqualified for unemployment benefits under MESA (Michigan Employment Security Act), however, because there was no evidence to suggest that the positive drug tests were caused by anything other than claimants’ use of medical marijuana in accordance with the terms of the MMMA (Michigan Medical Marijuana Act), the denial of the benefits constituted an improper penalty for the medical use of marijuana under the MMMA.”

Thus, employees in Michigan who possess a medical marijuana card but are discharged for testing positive may be entitled to unemployment benefits.
https://www.lexology.com/library/detail.aspx?g=695f7e35-4b6a-4031-bbe7-b4d20faf3f3a&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2018-02-05&utm_term

Vermont’s Governor Signs Recreational Marijuana Law
Vermont’s Governor Phil Scott signed a recreational marijuana law on January 22, 2018. The law is the first recreational marijuana law to be enacted by a state legislature without a ballot initiative. It will take effect on July 1, 2018.

The law eliminates all penalties for possession of one ounce or less of marijuana and permits a person who is 21 years of age or older to grow up to two mature and four immature marijuana plants. However, marijuana may not be consumed in a public place, such as streets, parks, public buildings, places of public accommodation and places where the use of tobacco products is prohibited. The law also does not protect individuals from prosecution for being under the influence while operating a motor vehicle or consuming marijuana while operating a motor vehicle.

The law does not create a retail marketplace for marijuana.

Importantly for employers, the law provides that it shall not be construed to do any of the following:

  • Require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace;
  • Prevent an employer from adopting a policy that prohibits the use of marijuana in the workplace;
  • Create a cause of action against an employer that discharges an employee for violating a policy that restricts or prohibits the use of marijuana by employees; or
  • Prevent an employer from prohibiting or otherwise regulating the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana on the employer’s premises.

The Governor’s Marijuana Advisory Commission has been directed to report on adopting a comprehensive regulatory structure for legalizing and licensing the marijuana market on or before December 15, 2018, in order to revise drug laws that have a disparate impact on racial minorities, help prevent access to marijuana by youths, better control the safety and quality of marijuana being consumed by Vermonters, substantially reduce the illegal marijuana market, and use revenues to support substance use prevention and education and enforcement of impaired driving laws.
https://www.lexology.com/library/detail.aspx?g=93e5bcc6-09d9-486d-b065-21c9c41f1a8e&utm_source=lexology+daily+newsfeed&utm_medium=html+email+-+body+-+general+section&utm_campaign=acc+newsstand+subscriber+daily+feed&utm_content=lexology+daily+newsfeed+2018-01-26&utm_term

New Jersey Executive Order
On January 16th, New Jersey Governor Phil Murphy signed an executive order banning state agencies and offices from inquiring about a job applicant’s salary history. The order also bans state agencies from investigating applicants’ salary history. The executive order is intended to close the gender pay gap.
http://www.state.nj.us/governor/news/news/562018/approved/20180116a_eo.shtml

Pay Equity Initiatives Flood the State Legislatures
In 2017, legislatures in more than 40 jurisdictions across the United States considered more than 100 bills intended to narrow the lingering pay gap between men and women. While only a handful of those proposals ultimately became law, this wave shows no signs of subsiding. Most state legislatures are back in session, and lawmakers are quickly picking up where they left off. At least 23 states, from Hawaii to New Jersey, have introduced some type of pay equity measure thus far in 2018. These bills (approximately 50 to date) often take different approaches. Some measures would broaden existing equal pay laws, for example, while other proposals would create new restrictions, such as a ban on employer salary history inquiries. The rationale underlying the salary history bill trend is that pay inequities are perpetuated when current pay is based on past employer decisions that could have been discriminatory. Legislatures have also considered wage transparency measures, which prevent employers from banning pay disclosure in the workplace, or from retaliating against employees who discuss their wages with others. In recent years, salary history and pay transparency proposals have been introduced as standalone bills or incorporated into more expansive pay equity legislation. With a variety of statutes taking effect in 2018, plus the torrent of pay equity bills, employers should pay close attention to this issue. This article surveys some of the newest legislation in this area and highlights bills pending in various statehouses.

Pay Equity Laws That Took Effect Recently-or Soon Will
Our review of key developments begins with four salary history laws, reflecting their popularity at the state and local level. Salary history restrictions are also included in sweeping amendments affecting the equal pay laws of Massachusetts, Oregon, and Puerto Rico, each discussed below.

Enacted Salary History Laws
New York City – As of October 31, 2017, it became illegal for New York City employers to make any salary inquiry of an applicant, or the applicant’s current or former employer, or a current or former employee (or agent) of the applicant’s current or prior employer. Employers likewise may not conduct any form of search through publicly available information for a prospective employee’s salary history. Under this amendment to the city’s Human Rights Law, it is also an unlawful discriminatory practice for an employer to consider an applicant’s salary history in determining the salary, benefits, or other forms of compensation for that applicant. However, if an applicant voluntarily and without prompting provides salary history, then this information can be used to determine the salary, benefits, and other compensation, and the employer may verify the salary history.

Delaware – A salary history statute took effect in December 2017 in the First State, making it unlawful for an employer to screen applicants based on their compensation histories.4 The law also prohibits employers from requiring that an applicant’s prior compensation satisfy minimum or maximum criteria for the job. Employers no longer may seek the compensation history of an applicant from the candidate or a current or former employer, except under narrow circumstances. Monetary penalties for violations of this law are steep, ranging from $1,000 to $5,000 for a first offense, and up to $10,000 for a subsequent offense. The law does not specifically prohibit employers from considering salary history when setting compensation, if applicants voluntary disclose that history.

California – As of January 1, 2018, a salary history ban (A.B. 168) applies to all California employers, including state and local governments. Under A.B. 168, no employer may rely on an applicant’s prior salary history “as a factor in determining whether to offer employment . . . or what salary to offer an applicant.” Salary history information includes both an individual’s rate of compensation as well as other benefits. Moreover, an employer cannot-orally or in writing, directly or indirectly-seek this type of information about an applicant. Accordingly, employers and their agents can no longer ask candidates, or their current or former employers, what candidates have earned in the past. An employer must, upon reasonable request, provide an applicant with the pay scale assigned to the position sought. There are certain exceptions to the California salary history restriction. First, employers may review and consider salary history information that is publicly available pursuant to federal or state law. Second, salary history may be discussed if an applicant “voluntarily and without prompting” discloses his or her history to a potential employer. In that event, the employer may consider and rely on that history in setting that applicant’s salary. Employers in the Golden State also should bear in mind that, even where consideration of salary history is permissible, prior salary alone cannot be used to justify paying any employee of a different sex, race, or ethnicity less than another employee for performing substantially similar work under similar working conditions.

San Francisco – Three months before California adopted the state-wide salary history ban, the City of San Francisco passed its own version: Ordinance No. 170350.7 This ordinance takes effect July 1, 2018 and is broader than the state counterpart. Like A.B. 168, the ordinance bans employers, including city contractors and subcontractors, from asking applicants about their current or past salary or considering an applicant’s salary information in determining whether to hire an applicant or what salary to offer. But Ordinance No. 170350 goes further, prohibiting employers from disclosing a current or former employee’s salary history without that employee’s authorization, unless the salary history is publicly available. The ordinance, however, does not prohibit an employer from verifying non-salary-related information disclosed by the applicant. Nor does it preclude an employer from running a background check-as long as that background check is otherwise consistent with the law and the employer does not consider any salary history information that is revealed during the background check. Ordinance No. 170350 also prohibits retaliation and imposes a workplace posting obligation.

Enacted, or Enhanced, Comprehensive Equal Pay Laws
Massachusetts – On August 1, 2016, Massachusetts Governor Charlie Baker signed the Act to Establish Pay Equity (AEPE).8 The AEPE, which becomes effective on July 1, 2018, makes it illegal to pay employees compensation at a lower rate than the rate paid to employees of a different gender for comparable work. Under the AEPE, “comparable work” is “work that is substantially similar in that it requires substantially similar skill, effort, and responsibility and is performed under similar working conditions.” The law also specifically provides that comparable work is not limited to employees who have the same job title.

In addition, the AEPE includes both salary history and wage transparency provisions. The law states that employers may not: (1) require that an employee refrain from inquiring about, discussing or disclosing information about the employee’s own wages, or any other employee’s wages; (2) screen job applicants based on their wages; (3) request or require an applicant to disclose prior wages or salary history; or (4) seek the salary history of any prospective employee from any current or former employer, unless the prospective employee provides express written consent, and an offer of employment-including proposed compensation-has been made. Retaliation against employees who oppose an action or practice banned by the AEPE is also unlawful. The Massachusetts AEPE also contains important affirmative defenses for employers-defenses that were not available under the old law. An employer may not be liable if it can demonstrate that a pay disparity for comparable work is based on one or more of the following factors: (1) bona fide seniority or merit-based systems; (2) compensation based on quality or quantity of production (e.g., piece-rate work); (3) workplace geographic locations; (4) differing levels of education, training or experience, to the extent relevant to the particular job and consistent with business necessity; or (5) travel, if necessary and regular for the specific job. The AEPE additionally provides a “self-evaluation” defense. Employers that complete a good-faith self-audit of their pay practices within three years of a claim and can demonstrate that “reasonable progress has been made towards eliminating compensation differentials based on gender,” have an affirmative defense to liability for an equal pay violation. The self-evaluation may be of the employer’s own design, so long as it is reasonable in scope or detail in light of the size of the employer or is consistent with standard templates to be issued by the state attorney general. Evidence of an employer’s self-evaluation or remedial measures is not admissible in later lawsuits, under certain circumstances.

Oregon – The Oregon Equal Pay Act of 2017, signed into law on June 1, 2017, goes even further than the Massachusetts amendments. This statute outlaws discrepancies in compensation (which includes wages as well as bonuses, benefits, and equity-based compensation) for work of a comparable character on the basis of any protected characteristic-such as race, religion, sex, sexual orientation, national origin, marital status, veteran status, disability, or age. As in Massachusetts, employers may pay employees at different compensation levels if the disparity is due to a bona fide factor related to the position based on: (1) a seniority system; (2) a merit system; (3) a system measuring earnings by quantity or quality of production; (4) workplace locations; (5) travel (if necessary and regular); (6) education; (7) training; or (8) experience. Like similar statutes in other jurisdictions, employers may not reduce the wages of employees to comply with the law. The Oregon Equal Pay Act also restricts salary history inquiries and expands existing remedies available to employees. Nonetheless, it provides a safe harbor for employers that have voluntarily assessed their pay practices to identify and eliminate discriminatory pay practices. An employer may move to disallow awards of compensatory and punitive damages, for example, if it can show that it: (1) completed, within three years before the date that the action was filed, an equal pay analysis of its pay practices in good faith that was reasonable in detail and scope, and related to the protected class asserted by the plaintiff; and (2) eliminated the wage differentials for the plaintiff and has made reasonable and substantial progress toward eliminating wage differentials for the protected class at issue. The bulk of these new provisions become operative on January 1, 2019.

Puerto Rico – On March 8, 2017, Puerto Rico enacted a similarly expansive equal pay bill, known as Act 16.10 Pursuant to Act 16, employers may not engage in pay discrimination based on sex among employees performing comparable duties that require the same skill, effort, or responsibility under similar working conditions. Exceptions are recognized for: (1) bona fide seniority or merit-based systems; (2) compensation based on quantity or quality of production, sales or profits; (3) differing levels of education, training or experience to the extent these factors are reasonably related to the specific job; and (4) any other reasonable factor that is not related to the person’s sex. As with the Massachusetts AEPE, the statute incorporates wage transparency and salary history prohibitions. Further, and typical of equal pay laws, Act 16 makes it unlawful to retaliate against employees who address or discuss pay inequality. Employers also may face double damages as a penalty under Act 16. That being said, the law provides some immunity from double damages for employers that can prove that, within the year preceding the filing of the complaint, they initiated a good-faith self-evaluation of payment practices and made reasonable progress in eliminating sex-based salary differences. Importantly, self-evaluation documents cannot be used in proceedings to establish violations for events that occurred prior to or within six months of the completion of the self-audit, or after a year of its completion, if the employer can establish that it is implementing a plan to resolve any sex-based pay differences. While Act 16 took immediate effect, employer penalties are not recoverable until March 8, 2018.

Notable Pending Pay Equity Proposals
Even as employers adjust their policies and procedures to comply with the new laws discussed above, they must keep a watchful eye for additional regulations. Numerous pay equity measures have been proposed, and, as noted below, a few are already showing potential.

Comprehensive Equal Pay Bills
Thus far in 2018, more than 10 states have introduced bills to adopt pay equity laws or strengthen existing statutes. A Washington proposal (H.B. 1506), for example, would amend the equal pay act to outlaw any discrimination in compensation based on gender between employees who are “similarly employed.”11 According to the bill, “employees are similarly employed if the individuals work for the same employer, the performance of the job requires similar skill, effort, and responsibility, and the jobs are performed under similar working conditions.” The measure provides that “[j]ob titles alone are not determinative” of this similarity. That being said, H.B. 1506 would permit pay discrepancies if “based in good faith on a bona fide job-related factor,” so long as that factor is “consistent with business necessity,” is not “derived from a gender-based differential,” and accounts for the entire disparity. Such factors can include education or reliance on a seniority, merit, or piece-rate compensation system. While these terms are similar to other updated, more progressive equal pay statutes, H.B. 1506 does not stop there. It further states that employers may not limit an employee’s “career advancement opportunities” on the basis of gender, including by failing to announce such opportunities or provide training. This Washington bill also includes a wage transparency provision. H.B. 1506 has passed the Washington house and is presently under review in a senate committee. Other equal pay permutations were proposed in Alabama, Arizona, Hawaii, Indiana, Missouri, Mississippi, Nebraska, New Jersey, Rhode Island, South Carolina, and Tennessee. Meanwhile, in Mississippi, several measures that would have created a new equal pay law have already died in committee.

Standalone Salary History Bills
State lawmakers continue to gravitate toward salary history bills. Legislators in at least 11 jurisdictions, including Arizona and Rhode Island, have introduced such measures. Proposals in Illinois and New Jersey may prove particularly promising. Illinois nearly enacted a salary history bill in its last legislative term. Governor Bruce Rauner vetoed a salary history proposal, and lawmakers fell short when attempting to override that veto in November. But an identical bill (H.B. 4163) was introduced soon thereafter, and it is now progressing through the house. Like Illinois, New Jersey came very close to prohibiting salary history inquiries in its 2016-2017 session. A bill passed both chambers but died on Governor Chris Christie’s desk. Subsequent proposals have been filed, however, and the new Democratic governor, Phil Murphy, is inclined to enact a salary history ban if given the chance. Indeed, his first executive order, signed the same day as his inauguration, barred state agencies from asking job applicants about their prior wages.

Standalone Wage Transparency Bills
Finally, at least 10 states will be weighing standalone wage transparency bills in 2018. Lawmakers in states spanning from Hawaii to Virginia have introduced such measures, which await committee review. Given the number of pending pay equity bills, and the unlikelihood of federal equal pay legislation advancing this year, efforts to promote pay equity legislation at the state and local level are expected to persist.
https://www.lexology.com/library/detail.aspx?g=55cbbdc9-256f-407f-a329-67bee5dfc531&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2018-02-20&utm_term

What can employers do with regard to background checks and inquiries in Ohio?
Criminal records and arrests: Ohio has “ban the box” legislation for public employers. Ohio law mandates that schools, daycare centers and healthcare facilities, among others, conduct background checks for applicants. Generally, Ohio mirrors federal law for private employers.

Medical history: Ohio has no specific law limiting a private employer’s ability to make medical inquiries of its employees. Ohio law mirrors federal law.

Drug screening: Ohio has no specific law regulating drug and alcohol testing for private employers. Generally, Ohio law mirrors federal law.

Credit checks: Ohio has no specific law regulating credit checks or the use of credit reports in the employment context.

Immigration status: Ohio has no specific law governing immigration status.

Social media: Ohio has no specific law governing social media passwords in the employment context.
https://www.lexology.com/library/detail.aspx?g=6339f7c2-d6e2-41ea-b856-435257fd8baf

International Developments

U.K. Court Rules Data Retention Law is Illegal
On January 30th, the U.K. Court of Appeal ruled that the U.K.’s “Data Retention and Investigatory Powers Act of 2014” violates EU law. The Act is intended to allow the government to collect citizens’ Internet activity and phone records to combat terrorist activity. The Court ruled that the law improperly allows the government to collect data for reasons other than crime-related purposes and without a court order. U.K. officials said that the government was already in the process of amending the law to be in compliance with EU law.
https://www.bloomberg.com/news/articles/2018-01-30/u-k-breached-eu-law-with-internet-spying-london-court-rules

Binding Corporate Rules for Data Processors and Controllers
On February 9th, the EU’s Article 29 Working Party released several working documents regarding Binding Corporate Rules for data processors and controllers. The Party also released a working document related to adequacy decisions. The documents focus on various elements, including:

  • The right of data subjects to file a complaint;
  • Data protection principles under the General Data Protection Regulation (GDPR) for data processors and controllers;
  • The ability for processors and controllers to demonstrate compliance; and
  • Adequacy decisions under the GDPR.

http://ec.europa.eu/newsroom/article29/news.cfm?item_type=1307&tpa_id=6936

Article 29 Working Party Releases Updated Guidance on Personal Data Breach Notification
On February 6th, the EU’s Article 29 Working Party released updated guidance regarding personal data breach notification under the General Data Protection Regulation (GDPR). The guidance explains the requirements under the GDPR and “steps controllers and processors can take to meet these new obligations.”
https://iapp.org/media/pdf/resource_center/WP29-Breach-notification_02-2018.pdf

Facebook’s use of personal data in Germany
A German regional court ruled that Facebook’s use of personal data was illegal because it did not secure the informed consent of its users, violating consumer law
https://www.reuters.com/article/us-germany-facebook/german-court-rules-facebook-use-of-personal-data-illegal-idUSKBN1FW1FI

What can employers do with regard to background checks and inquiries in Canada under Federal Law?
Criminal records: An employer can request an applicant to consent to a criminal record check, provided that it is limited to offences for which a pardon has not been granted or a record suspension has not been ordered. This should be done as part of a conditional offer of employment.

Medical history: An employer may inquire about an applicant’s medical history only if he or she has a condition that may affect his or her ability to perform the job safely. Such questions may be asked only if a disability or condition would threaten the safety of the individual or others. Any further questions should be asked during a pre-employment medical examination and must relate to conditions which are relevant to the specific duties of the position in question. A pre-employment medical may be required only as part of a conditional offer of employment.

Drug screening: Pre-employment and random drug screenings are generally not permitted, subject to extremely limited exceptions (e.g., truck drivers who are required to drive in the United States as part of their duties).

Credit checks: Credit checks are permitted with the applicant’s consent.

Immigration status: An employer can ask all applicants whether they are legally entitled to work in Canada. If an applicant is hired, he or she must be asked to provide confirmation of her or his entitlement to work in Canada by providing a valid social insurance number and any applicable work permit.

Social media: Employers can assess an applicant’s social media presence. However, employers should be careful about basing any decision on information gained from social media that might be connected to a prohibited ground of discrimination. Generally, employers should obtain consent from an applicant before reviewing such information to comply with privacy legislation.
https://www.lexology.com/library/detail.aspx?g=44401f85-f8d2-4e12-940a-7d0d62858e16&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2018-02-01&utm_term

What can employers do with regard to background checks and inquiries in Alberta (Canada)?
Criminal records and arrests: With consent, employers can perform background checks on employees’ criminal records. However, employers may be vulnerable to challenges if a candidate is denied a job because of a criminal record which is unrelated to the position for which he or she applied.

Medical history: Generally, medical history should not be considered in the hiring process, except where there is a bona fide occupational requirement. Pre-employment medical testing or medical history can be requested after a conditional offer of employment has been extended, if it can be shown that this information is directly relevant to the position.

Drug screening: Drug and alcohol testing is a contentious issue in Canada because addiction is seen as a disability under human rights law, and because it has been held that drug testing does not actually determine whether an employee is impaired while at work. This has led to seemingly conflicting lines of case law, one from Ontario and the other from Alberta. The federal and Ontario approach is that, in general terms, testing is inherently discriminatory under human rights law. In Alberta, pre-employment drug testing can be done for safety-sensitive positions if the candidate is made aware of the testing and subject to a strict testing regime. This is because the Alberta courts have found that health and safety is more critical than human rights issues, although if a candidate who tests positive proves a dependency, the employer may have a duty to accommodate him or her. Further, when employees must work part of the time in the United States (e.g., inter-provincial truckers) and drug screening is a requirement under U.S. state law, that requirement may be found to support an employer’s position that drug testing is a bona fide occupational requirement that should be permitted notwithstanding general human rights and privacy concerns.

Credit checks: The Alberta privacy commissioner has ruled that employers are permitted to collect only personal information that is specific to the requirements of the position to be filled from prospective employees. Credit checks for employees as part of a routine background check process are not recommended in Alberta. Federally regulated employers are governed by the Personal Information Protection and Electronic Documents Act and are permitted to request credit checks only where it is reasonable to do so.

Immigration status: Employers may require proof of legal ability to work in Canada as a condition of employment but are prohibited under human rights legislation from inquiring into a prospective employee’s ancestry, citizenship or national or ethnic origin.

Social media: Social media checks during the pre-hiring stage increase the risk of a discrimination complaint, as a candidate’s social media profile may disclose information concerning a protected ground under human rights legislation.
https://www.lexology.com/library/detail.aspx?g=6c472d3d-569d-474e-ab1b-9e4c4c9f8b10&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2018-02-23&utm_term

What can employers do with regard to background checks and inquiries in Ontario (Canada)?
Criminal records and arrests: In order to avoid a discrimination complaint, all background checks – including criminal record checks – should be performed only after a conditional offer of employment has been extended. A standardized process for conducting searches of a federal criminal records database exists. Individuals cannot be discriminated against based on convictions for criminal offences which have been pardoned or provincial regulatory offences, unless there is a bona fide occupational requirement (e.g. the job involves working with vulnerable persons).

Medical history: Generally, medical history should not be considered in the hiring process, except where there is a bona fide occupational requirement. Pre-employment medical testing or medical history can be requested after a conditional offer of employment has been extended, if it can be shown that this information is directly relevant to the position.

Drug screening: Drug and alcohol testing is a contentious issue in Canada because addiction is seen as a disability under human rights law, and because it has been held that drug testing does not actually determine whether an employee is impaired while at work. This has led to seemingly conflicting lines of case law, one from Ontario and the other from Alberta. The federal and Ontario approach is that, in general terms, testing is inherently discriminatory under human rights law. However, the law does distinguish between drug and alcohol testing because a positive breathalyzer test for alcohol shows an existing impairment, while a drug test may not necessarily show an existing impairment. In Ontario, this has led to a general prohibition on pre-employment drug testing. Federally, random drug testing of employees is viewed as discriminatory, even for safety-sensitive positions. This is because drug testing does not reflect actual or future impairment on the job. Even if an employee used a drug days or weeks before the day of testing, there may still be evidence of the substance at the time of testing. Random alcohol testing for safety-sensitive positions may be acceptable in some cases, but the Supreme Court of Canada recently upheld an arbitrator’s decision striking down random alcohol testing for safety-sensitive positions. Even testing that measures impairment can be justified only if it is demonstrably connected to the performance of the job (e.g. after significant accidents or ‘near misses’). Post-incident drug and alcohol testing must generally be part of a larger rehabilitation program for employees. The approach taken by most Ontario and federal adjudicators is that drug and alcohol testing is inherently discriminatory and can be used only in limited circumstances. The primary reason for conducting drug testing should be to measure impairment. The Ontario Human Rights Commission has released a new drug and alcohol testing policy that provides useful guidance on the legal principles employers should take into account when designing and implementing any testing regime. However, when employees must work part of the time in the United States (e.g., inter-provincial truckers) and drug screening is a requirement under U.S. state law, that requirement may be found to support an employer’s position that drug testing is a bona fide occupational requirement that should be permitted notwithstanding general human rights and privacy concerns.

Credit checks: For provincially regulated employers, it is best practice to conduct credit checks only where it would be reasonable to do so (e.g. where the employee is handling and responsible for large sums of money or valuables). In addition, consumer reporting legislation sets out consent requirements and prescribed procedures. Federally regulated employers are governed by the Personal Information Protection and Electronic Documents Act and can request credit checks only where it would be reasonable to do so.

Immigration status: Employers may require proof of legal ability to work in Canada as a condition of employment but are prohibited under human rights legislation from inquiring into a prospective employee’s ancestry, citizenship or national or ethnic origin.

Social media: Social media checks during the pre-hiring stage increase the risk of a discrimination complaint, as a candidate’s social media profile may disclose information concerning a protected ground under human rights legislation.
https://www.lexology.com/library/detail.aspx?g=7a8cd76f-346b-4b01-ac61-4f2fee0948f8&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2018-02-22&utm_term

What can employers do with regard to background checks and inquiries in Quebec (Canada)?
Criminal records and arrests: To avoid a discrimination complaint, all background checks, including criminal record checks, should be performed only after a conditional offer of employment has been extended. There is a standardized process for conducting searches in a federal criminal records database. However, individuals cannot be discriminated against based on convictions for criminal offences which have been pardoned or provincial regulatory offences unless there is a bona fide occupational requirement (e.g., the job involves working with vulnerable persons).

Medical history: In general, medical history should not be considered during the hiring process unless there is a bona fide occupational requirement. Pre-employment medical testing can be requested in some circumstances after a conditional offer of employment has been extended.

Drug screening: Drug and alcohol testing is a contentious issue in Canada because:

  • addiction is seen as a disability under human rights law; and
  • it has been held that drug testing does not determine whether an employee is impaired while at work.

According to the Commission on Human Rights and Youth Rights, drug testing is likely to interfere with the rights to personal inviolability (i.e., safeguarding one’s dignity and respect for one’s private life), which is provided for in Quebec legislation. This interference with fundamental rights stems from:

  • the intrusive nature of the testing;
  • the personal information that may be discovered, recorded and revealed during the analyses; and
  • the fact that it is potentially discriminatory.

Federally, random drug testing of employees is viewed as discriminatory (even for safety-sensitive positions) because it does not reflect actual or future impairment on the job. An employee could have used a substance days or weeks before the day of testing and there may still be evidence of it at the time of testing. Random alcohol testing for safety-sensitive positions may be acceptable in some cases, but the Supreme Court of Canada recently upheld an arbitrator’s decision striking down random alcohol testing for safety-sensitive positions. Even testing that measures impairment can be justified only if it is demonstrably connected to the performance of the job – for example, after significant accidents or near misses. This post-incident drug and alcohol testing must generally be part of a larger employee rehabilitation program. The approach taken by most Canadian adjudicators is that drug and alcohol testing is inherently discriminatory and can be used only in limited circumstances. The primary reason for conducting such testing should be to measure impairment.

Credit checks: For provincially regulated employers, it is best practice to conduct credit checks only where it is reasonable to do so (e.g., where the employee is handling, and responsible for, large sums of money or valuables). Federally regulated employers are governed by the Personal Information Protection and Electronic Documents Act and are permitted to request credit checks only where it is reasonable to do so.

Immigration status: Employers can require proof of an individual’s legal ability to work in Canada as a condition of his or her employment but are prohibited under human rights legislation from inquiring as to an individual’s citizenship or national or ethnic origin.

Social media: Social media checks in the pre-hiring stage increase the risk of a discrimination complaint as a candidate’s social media profile may disclose information concerning a prohibited ground under human rights legislation.
https://www.lexology.com/library/detail.aspx?g=087e3115-7523-4d78-a314-9f9f58741c1b

What can employers do with regard to background checks and inquiries in Switzerland?
Criminal records: Employers can request an official extract of the criminal records if such data is necessary to assess the applicant’s eligibility for the job.

Medical history: Applicants must answer questions relating to health conditions truthfully if such data is necessary to assess the applicant’s eligibility for the job.

Drug screening: Applicants can be requested to undergo drug screening tests if such test results are necessary to assess the applicant’s eligibility for the job.

Credit checks: Employers can request an official extract of the Enforced Payment Collection Register records if such data is necessary to assess the applicant’s eligibility for the job.

Immigration status: Applicants are requested to present their work permit. If the applicant does not hold a valid work permit, the employer must apply for a permit well in advance to the commencement of work in Switzerland. EU nationals benefit from the bilateral agreement between Switzerland and the European Union on the free movement of persons (SR 0.142.112.681).

Social media: The use of social media for background checks is debated in Switzerland. Some scholars opine that employers must abstain from such practices; others think that employers are under an obligation to confront the applicant with online search results.
https://www.lexology.com/library/detail.aspx?g=4b7c2640-7828-4277-8140-e64ca7254622&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=ACC+Newsstand+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2018-02-20&utm_term

Let’s start a conversation

contact Contact