Illinois Law – March 2021 Compliance Update

Conviction Records and Equal Pay Compliance

Illinois enacted legislation that amended the Illinois Human Rights Act. The changes made prohibit employers, agencies, and labor organizations from taking adverse action on an individual due to conviction records unless:

• A substantial relationship exists between the criminal offense and the employment opportunity
• Hiring or continuing their employment puts property, other employees, or the public at unreasonable risk

The conviction records include felonies, misdemeanors, probation, imprisonment, parole, law enforcement fines, and more:

• Mitigating factors must be considered before an employer uses a conviction record in its decision-making.
• Interactive assessment and notice requirements for employers’ preliminary decisions.
• Employees’ right to respond before their employer’s final employment decision; and
• Employer’s final decision procedure.

The compliance update will mean more scrutiny placed on background checks. Be sure to use Blueline Services to stay in compliance.

New Jersey Law – February 2021

Compliance Update

Adult-Use Cannabis Reform

Adult-use cannabis reform has a couple of clauses to it. First, it legalizes cannabis use for adults 21 and older. It then sets provisions protecting against discrimination in employment opportunities due to cannabinoids being detected in a drug test.

How the workplace will be affected:

AB 21 prohibits employers from refusing to hire, employ, discharge, or taking any other adverse action against any person because they do or do not use cannabis. Additionally, employees cannot be subject to adverse employment action solely because cannabinoid metabolites were present in their workplace drug tests. However, the law does not allow cannabis or marijuana use or possession in the workplace or prohibit workplace drug testing. An employer may require an employee to undergo a drug test if it is reasonably suspected that an employee is using cannabis when working, if they display any observable signs of cannabis intoxication, or after a work-related accident. Employers may also drug test randomly, as part of pre-employment screening, or regularly screen current employees to determine drug use during the employee’s working hours. Workplace drug tests must have both a scientific process (blood, urine, or saliva testing) and a physical evaluation to determine if the employee is impaired.

AB 1897 protects against employment discrimination by prohibiting employers from making decisions solely based on an employee’s and applicant’s arrest, charge, conviction (juvenile included) related to marijuana or hashish (charge). Additionally, employers cannot require an applicant to disclose or reveal any such charge.

AB 21 is effective immediately but is not operative until rules and regulations are released by the New Jersey Cannabis Regulatory Commission. Employers are encouraged to begin compliance with AB 1897 immediately, as well. Read more on cannabis and marijuana reform from the governor.

The post Compliance Update for New Regulations in Illinois and New Jersey appeared first on Blueline.

We’ve listed some of the more notable changes that occurred in 2019 below. Please make sure that you’re up to date with your own area’s changing legislation in order to stay compliant.

‘Ban the Box’ and ‘Clean State’ Laws

2019 saw the continuation of ‘Ban the Box‘ laws being spread, in the last decade nearly three dozen states and more than 150 communities have passed legislation that help ensure ex-offenders aren’t left out of the hiring pool.

Other clean state laws included:
-New Mexico’s Criminal Offender Employment Act
–Colorado Chance to Compete Act
–Fair Chance to Work Law – Westchester County, New York
-Clean State Laws – Colorado, Nevada, West Virginia

Pay Equity Laws

Pay equity laws took affect in Oregon, Connecticut, Hawaii, Maine, Washington, Alabama, Illinois, Missouri, New York, Kansas City, and Suffolk County in 2019. Even more pay equity laws are expected to be passed in 2020 and 2021.

These laws are being passed in an effort to close the wage gap between men and women. Most of these pay equity laws include statutes that prevent employers from asking about an employee’s previous pay history. As these laws continue to spread, please stay aware for your own hiring protocols.

Some lawmakers are adding additional concepts to these pay equity laws such as safe harbor. Colorado’s pay equity law which passed in 2019, but will take effect in 2021 encourages employers to complete internal pay equity analyses to find wage differences based on gender and remedy them.

New Marijuana Accommodations

Marijuana laws have largely changed on the state or local level within the past couple of years. Thirty-three states and the District of Columbia have now passed some form of medical marijuana law, with 11 states legalizing marijuana for recreational use.

This has been one of the largest subjects of interest for employers as they grapple with how to handle this new legislation within their own workforce.

If you have questions on marijuana legislation and how it may play a role in your own hiring and drug testing policies, we highly recommend consulting legal council about your specific state and area laws.

Some more notable legislation that took place during 2019 with marijuana included some of the following:

-New Jersey’s Jake Honig Compassionate Use Medical Cannabis Act
-New Mexico’s SB 406
-Oklahoma’s Medical Marijuana and Patient Protection Act
-Nevada’s AB 132
-New York City’s Int. No. 1445-A
–Whitmire v. Wal-Mart Stores Inc.

Looking Forward

As we continue to move forward into 2020, we expect to see many of these same legal trends continuing to spread. Especially as new technologies and continued efforts to build a more equal workforce continue.

The post A Look Back: 2019’s Big Legal Decisions and Changes In Screening appeared first on Blueline.

What if you have an employee that lives in one state and works in another? How does this work with legal medical or recreational marijuana?

Being a multi-state employer means dealing with employees who work in different states and dealing with different laws and regulations in each area. It can definitely be a headache at times, especially when dealing with drug testing and medical marijuana.

The list of things employers need to know in order to stay compliant can seem nearly endless at times: state laws, federal regulations, city-specific regulations, workers’ compensation laws, employment laws, etc. This is made even more difficult with the recent changes to marijuana legalization.

There is no ‘one-size-fits-all’ solution for staying compliant, but employers should work hard to stay on top of their drug testing policy and make sure it is up-to-date with regularly changing state and federal laws.

How Do Laws Work Together? What If I Have An Employee That Lives In One State And Works In Another?

Unfortunately, there is no governing case law that outlines which drug use and testing laws trump others.

However, employers may find it useful to study court cases that have dealt with conflicting state laws in order to help inform their decisions. One court case that may help provide some insight about competing state laws is Olsen v. Push, Inc.

In 2014 Olson v. Push, Inc., the District Court ruled that drug testing should conform with procedures and practices prescribed in the state where the employment takes place and not those of the state where an individual lives or applies for employment.

However, this initial decision was reversed and remanded back to the District Court in 2016 by the United States Court of Appeals.

While neither of these decisions is binding, this case may be useful for employers to review for guidance.

We also strongly recommend keeping detailed drug testing policies in your employee handbook. You should have additional sections for each regulated jurisdiction in which you have employees. Again, this is where specialized legal counsel would be very beneficial.

Ultimately, multi-state employers need to find a way to comply with the individual laws in each state which they do business. And if you have employees that are governed by federal laws related to drug testing, like DOT or NRC employees, you need to comply with those federal regulations as well.

What Laws Should Employers Be Aware Of?

There are a lot of unusual and almost “hidden” laws sometimes within drug testing. While we still highly recommend consulting an expert within your own areas of employment, here are a few unusual regulations that could be good to take note of.

• Boulder, Colorado: There are specific restrictive drug testing laws that only apply to employers who operate within Boulder city limits.
• California: No statute that specifically regulates drug testing in the private sector exists. However, there is case law that affects who can be tested and under what circumstances. Random drug testing is permitted for safety-sensitive positions. (Note: San Francisco is another city that has its own separate ordinances for employers)
• Connecticut: A drug testing friendly state, though its law places restrictions on random testing and requires reasonable suspicion for all other types of testing. Employers must give all prospective employees written notice at the time of application of their intent to conduct a drug test.
• Colorado: No comprehensive law regulating or prohibiting drug testing. (Note: Boulder has its own separate regulations)
• Delaware: No comprehensive law regulating or prohibiting drug testing. An employer may not discriminate against a person in hiring, termination, or any term or condition of employment based on the person’s status as a medical marijuana cardholder.
• Illinois: Effective January 1, 2020, the Cannabis Regulation and Tax Act provides broad workplace protections for employers specifically stating that nothing in the act prohibits an employer from adopting a reasonable zero-tolerance or drug-free workplace policy. Employers that choose to discipline employees for being under the influence or impaired by marijuana must give the employee a reasonable opportunity to contest the basis of the determination that the employee was under the influence or impaired. Additionally, disciplinary action based on the use of legal substances outside of work is prohibited.
• Louisiana: Very few restrictions on employers, but employers are required to take adverse action based on a positive drug test use certified laboratories and specific testing procedures.
• Maine: Very rigid laws for employers with limits on when tests can be done, strict policy and employee notification rules, as well as statutes that mean all drug testing policies must be approved by the state labor department.
• Massachusetts: This state does not have a drug testing statute, though there have been landmark legal decisions that have shaped how drug testing can be conducted. The state’s narrow privacy law also impacts workplace drug testing.
• Michigan: Employers are limited in pre-employment testing to job applicants in “test-designated” positions including those requiring a commercial driver’s license, individuals operating machinery or emergency vehicles, and those with law enforcement powers. Post-accident testing is limited to accidents which result in death or serious personal injury and arise out of five specific situations. 
• Nevada: Effective January 1, 2020, it will be prohibited to deny employment because of a positive marijuana test. Certain exceptions apply for fire fighters, emergency medical technicians, or where an employer determines that marijuana use could adversely affect the safety of others.
• New Jersey: Employees are protected by an anti-discrimination clause in the Medical Cannabis Act that prohibits employers from taking any adverse action against a registered qualifying patient solely based on the individual’s status as a legal marijuana user. Employers must provide notice to applicants and employees who test positive for cannabis that they have the right to provide a “legitimate medical explanation” for the positive result within three days.
• New York City, New York: Beginning May 2020, employers in New York City will be unable to test job applicants for marijuana. There are several exceptions including for police officers, commercial drivers, and employees dealing with the building code.
• San Francisco: Random testing is totally prohibited unless required by a federal law mandating drug testing. 
• Texas: No limits are placed on the right of private employers to adopt drug and alcohol testing for their employees. There are limits, however, for public (government) employees.
• Vermont: Restrictions placed on random drug testing.

The post Multi-State Employers: Drug Testing Compliance appeared first on Blueline.

The car, while still in auto-pilot at the time of the accident, did have an operator sitting behind the wheel, 44-year-old Rafaela Vasquez.

Lots of speculation and bad press has rained down on Uber since the accident as it was discovered that Vasquez had served almost four years in prison in the early 2000s due to an attempted armed robbery conviction and unsworn falsification.

While the felony conviction does not have a direct correlation to the crash, it has brought Uber’s hiring policies to light and they are currently under active investigation.

Uber’s Legal Past

This isn’t the first time.

Uber has different regulations and laws across the globe and been involved in over 173 lawsuits since November 2015. Many of them due to safety disputes. Their screening provider Checkr has been sued over bad background checks recently as well which has not helped Uber’s situation.

Uber’s hiring policy boasts to help offer convicts a second chance. (Something we strongly support!) But the safety of users and adhering to regulations are also extremely important.

Just a few months ago, the ride-hailing company was under fire for a similar felony problem. The Colorado Public Utilities Commission fined them $8.9 million for hiring 57 drivers with previous felony convictions.

Uber was subject to the fine as Colorado state law prevents individuals with felony convictions, alcohol or drug-related riving offenses, unlawful sexual offenses and major traffic violations from working for ride-share companies.

The company blamed the problem on a error in its background check process, but acknowledged that some drivers had been approved that shouldn’t have been allowed on its service.

As a ride-sharing company, one of app’s users’ main concerns is feeling safe while participating in their services. And employment screening is a huge part of this security.

How Do I Keep Myself And/Or My Company Safe?

Many screening providers rely on automated procedures alone to handle their screening processes, leaving their clients exposed to a multitude of safety and legal risks.

To help avoid finding yourself or your company in a sticky situation like Uber is in currently, it’s so important to have a quality employee screening provider who will run more than just an automated background check.

We know it isn’t easy to keep up with so many different rules and regulations. They are ever-changing and differ from state to state. We understand Uber and Checkr’s frustrations; it isn’t easy work!!

More than seventy-nine percent of employers lose negligent hiring cases and employers are out $81 billion for drug abuse costs every year.

So what should your screening provider be doing?

Make sure that your screening provider (whoever they might be) is professionally reviewing your background checks and drug tests—meaning that your checks aren’t just running through the automated system. After running through the system, every result should be individually reviewed by a screening professional to double-check for accuracy and find any hidden errors.

Another way in which we ensure accuracy is by having a full-time compliance manger who is always checking and updating regulations on our end. Because these regulations are constantly changing, it’s crucial to have someone who is consistently checking for updates.

We’re passionate about quality employment screening because it not only saves you money, time and a serious headache—it also keeps you and everyone around you safe.

The post Uber Under Fire After Fatal Self-Driving Accident appeared first on Blueline.