Background Investigations

Employers began to rethink how they obtain authorization and retrieve background and credit checks for new employees after the Ninth Circuit’s decision in Gilberg v. California Check Cashing Stores, LLC, 913 F.3d 1169, 1177 (9th Cir. 2019), as we’ve previously discussed. However, lower California courts recently decided other issues surrounding background checks, such as the amount of time employees have to file a claim. These recent rulings suggest that the statute of limitations for an employee to file a claim for an alleged violation of federal and/or state background and credit checks laws can begin on the employee’s first day of work.
Continue Reading First Day on the Job and on Notice: When the Statute of Limitations Begins for Employer Background Checks

Albert Einstein believed “Everything should be made as simple as possible, but not simpler.” The Ninth Circuit seems to agree. In Gilberg v. Cal. Check Cashing Stores, LLC, No. 17-16263, 2019 WL 347027 (Ninth Cir. Jan. 29, 2019), the Ninth Circuit held a single form combining nearly identical federal and state disclosures violates both federal and state laws. Employers who conduct pre-employment background checks must now provide applicants with two separate standalone forms: (1) disclosure and consent under Fair Credit Reporting Act; and (2) disclosure and consent under California’s Investigative Consumer Reporting Agencies Act (or other applicable state law). This decision applies to employees providing services in the Ninth Circuit (California, Arizona, Hawaii, Alaska, Idaho, Montana, Nevada, Oregon and Washington).
Continue Reading Complicating Simplicity: Ninth Circuit Requires Separate Stand-Alone Documents for Employment Background Checks

Many states and municipalities throughout the country have enacted laws that mandate the removal of criminal conviction history questions from job applications. This so-called “Ban the Box” movement theoretically provides individuals with criminal backgrounds the opportunity to obtain jobs for which they otherwise would not have been considered. But, these laws also provide additional burdens for employers and add additional ways for them to face liability.
Continue Reading “Ban the Box” Laws & Workplace Violence: An Employer’s Failure to Sufficiently Perform Background Checks Could Lead To Costly Negligence Liability

Overview

Retailers and other employers regularly consider the backgrounds of job applicants and employees when making personnel decisions. It is not illegal for employers to ask questions about an applicant’s criminal history, or to require a background check. However, whenever an employer requests background information about a job applicant or employee, the employer must comply with federal and state laws. Within the last five years, employers have been put under increased scrutiny, especially when they require criminal background checks during the hiring process. This article summarizes recent legal trends regarding criminal background checks in the employment context, and discusses how employers—particularly those within the retail industry—can ensure compliance with the law.
Continue Reading “Ban the Box” and Background Checks – Recent Trends and Movements

Following the Los Angeles minimum wage ordinance that was enacted earlier this year, the City of Los Angeles has now enacted another ordinance that will significantly impact employers doing business within city limits.  On December 9, 2016, Mayor Garcetti signed into law the “Fair Chance” ordinance, which significantly limits the ability of Los Angeles employers to ask job applicants about criminal convictions.
Continue Reading Los Angeles Enacts “Fair Chance” Ordinance Prohibiting Criminal History Inquiries Prior To Conditional Offers Of Employment

This past year New Jersey state and local legislatures implemented several employment laws that are set to take effect at the end of 2015 or in early 2016. This update summarizes these new legal requirements to help New Jersey employers prepare and comply in 2016.
Continue Reading New Year, New Rules for Employers Doing Business in New Jersey

On September 10, 2015, the Fair Chance Act (the “Act”) was introduced by a bipartisan group of legislators from both houses of Congress. The Act would prohibit federal contractors and agencies from inquiring into an applicant’s criminal history prior to a conditional offer of employment.  The proposed legislation would allow an employer to conduct a criminal history check after the conditional offer, and does not prohibit an employer from revoking the conditional offer on the basis of such findings.
Continue Reading Proposed Federal “Ban the Box” Legislation Receives Bipartisan Support

On Wednesday, June 10, 2015, the New York City Council approved a bill that will strictly regulate how employers in New York City (with at least four employees) may conduct criminal background checks.  Mayor Bill de Blasio is expected to sign the bill, which will go into effect 120 days after enactment.  The bill comes on the heels of the City’s ban on most forms of applicant background credit checks, which we reported on here, and which Mayor de Blasio signed into law on May 6, 2015.
Continue Reading NYC Council Votes to Sharply Restrict Employer Use of Criminal Background Checks

On April 16, 2015, the New York City Council (the “Council”) passed a bill (Int. 0261-2014) prohibiting employers from requesting or using the consumer credit history of an employee or job applicant when making employment decisions (the “Bill”).  More specifically, the Bill would make it a discriminatory practice to request or use the consumer credit history of applicants or employees by amending the City’s Human Rights Law to include the following provision:
Continue Reading NYC Council Votes to Ban Employers from Conducting Credit Checks

Ban the Box

Joining the current “Ban the Box” trend, effective January 1, 2015, the Job Opportunities for Qualified Applicants Act prohibits Illinois employers from asking job applicants about their criminal record or criminal history until after the employer determines that the individual is qualified for the position and notifies the individual that s/he has been selected for an interview.  If an employer does not conduct interviews, then any inquiry into an applicant’s criminal background cannot take place until after the employer makes a conditional offer of employment.
Continue Reading New Illinois Laws in 2015: What Employers Should Know

As we reported in December 2013 (see here), New Jersey was on the road to joining 6 other states which have recently passed legislation banning or limiting the use of criminal background checks in the hiring process.  On August 11, 2014, New Jersey Governor Chris Christie signed the Opportunity to Compete Act, and New Jersey joined Connecticut, Illinois, Massachusetts, and Rhode Island, among a number of other states, cities, and municipalities, in prohibiting employers from asking about an applicant’s criminal history during the initial stage of the application process.  The New Jersey legislature had passed the measure in June.
Continue Reading UPDATE: New Jersey Limits Use of Criminal History in Hiring Decisions