Jan 20, 2021 @ 10:57 AM EST | United States
Several states recently issued new form versions for the following Sterling services. Please begin using these new forms, available in our platform, effective immediately. Thank you for your continued trust in Sterling.
- Neglect/Abuse: Colorado, Washington D.C., Maine, Michigan, Washington, and Wyoming.
- Adult Abuse: Colorado (CAPS), West Virginia, and Wyoming.
- Workers’ Compensation: Alaska and Utah.
- Idaho State Police
Jan 20, 2021 @ 10:31 AM EST | United States
On December 10, 2020, the New York City Council passed Int. 1314-A, Prohibiting Discrimination Based on One’s Arrest Record, Pending Criminal Accusations or Criminal Convictions (the “Amendments”) to amend the City’s Fair Chance Act (“FCA”).
The FCA, which took effect in October 2015, incorporates the individualized assessment obligations contained in New York Correction Law Article 23-A into City requirements, and requires employers to complete a written analysis of the Article 23-A factors when considering an adverse employment decision due to criminal history. Additionally, the FCA prohibits employers from inquiring into an individual’s criminal history prior to extending a conditional offer, and outlines the adverse action process the employer must follow to rescind conditional offers.
The Amendments, which take effect 200 days after enaction, expand the FCA in the following ways:
- Requiring employers to apply the Fair Chance process prior to taking an adverse action based on pending arrests or criminal accusations. The assessment that must be conducted for pending offenses includes two deviations from the factors included in Article 23-A:
- Instead of considering the length of time since the alleged offense, and the individuals age at the time, the employer must specifically consider whether the individual was 25 years old or younger when the alleged offense was committed
- Enhances requirement to consider evidence of rehabilitation and good conduct, by requiring consideration of any additional information produced by the individual or produced on their behalf regarding their rehabilitation, or good conduct including positive performance and conduct in employment or in the community.
- Prohibiting all inquiries and employment decisions related to violations and non-criminal offenses, with exceptions for motor vehicle records
- Clarifying that employers must apply the Fair Chance process to current employees for convictions, pending arrests, or accusations during their employment
- Extending the time required to allow an individual to respond to their analysis during which the position must be left open from three days to five days, consistent with what is generally considered a reasonable amount of time at the federal level
- Clarifying that employers may take adverse action due to an individual’s misrepresentation of their criminal history, provided that the inquiry was lawful, and the individual is provided with supporting documentation and a reasonable amount of time to respond
- Incorporating state-level prohibitions on inquiring about non-pending arrests and criminal accusations, adjournments in contemplation of dismissal, youthful offender adjudications, or sealed convictions
- Codifying the position taken by the NYC Commission on Human Rights requiring employers to affirmatively solicit information on all FCA factors, and that failure to do so indicates improper application of the Fair Chance process.
- Codifying the rule promulgated by the NYC Commission on Human Rights which states that a conditional offer may only be revoked due to any of the following:
- Results of a background check after the Fair Chance process has been followed
- Results of a medical exam permitted by the Americans with Disabilities Act
- Other information that an employer could not have reasonably known prior to extending the offer, if they can demonstrate that this would cause them to rescind the offer regardless of the results of the criminal background check
New York City employers should review their background screening policies and programs in light of these Amendments and consult with their legal counsel in order to determine their next steps. While no additional updates have been made to the form provided by the NYC Commission on Human Rights, employers need to take into account the specifics of the new laws for the length of time, age of the offender, and rehabilitation. Sterling clients with questions or interest regarding our Fair Chance service offerings or other compliance-oriented tools should contact their account representative.
The full text of the Amendments can be found here.
The Information contained herein is for informational purposes only. Sterling is not a law firm, and none of the information contained in this notice is intended as legal advice. Clients are encouraged to consult with their legal counsel about the impacts of any requirements. This and other important legislative updates can be found on the Sterling website: https://www.sterlingcheck.com/resources/compliance-updates/
Jan 20, 2021 @ 10:29 AM EST | United States
On November 20, 2020, the Montgomery County Executive signed into law Bill 35-20 (the “Amendments”) to amend the county’s Fair Criminal Screening Standards Law (the “Ordinance”).
The Fair Criminal Screening Standards Law
The original ordinance, which took effect on January 1, 2015, was enacted to remove barriers to employment for individuals with criminal records, and reduce bias when considering applicants’ criminal history information by requiring employers to engage in the following practices:
- Delay inquiries about applicants’ criminal histories
- Conduct an individualized assessment when considering an applicant or employee’s criminal history, so as to only consider offenses that demonstrate unfitness to perform the duties of the position
- Identify the items forming the basis of a decision when notifying an applicant or employee of the intent to make an adverse employment decision or when rescinding an offer
- Wait 7 days between submitting a pre-adverse action notice and making a final decision to allow the applicant or employee an opportunity to dispute the accuracy of the item on which the intended decision is based and provide additional information.
Exemptions are provided for positions in which the prohibited actions or inquiries are authorized by state, federal, or county law, positions with the County Police Department, County Fire and Rescue Service, and County Department of Corrections and Rehabilitation, positions with employers providing programs, services, or direct care to minors or vulnerable adults, and positions requiring federal government security clearance.
November 2020 Amendments
The Amendments, effective February 19, 2021, modify existing language in addition to including new prohibitions. The original Ordinance permitted inquiries into applicants’ criminal history and the running of background checks after an initial interview, and the Amendments require that employers delay these until a conditional offer of employment has been extended. Also, notably for smaller employers, the definition of “Employer” is amended to include all entities employing 1 or more fulltime employees, reduced from the previous standard of 15.
New restrictions included in the Amendments prohibit employers from requiring disclosure, conducting background checks to determine, or otherwise inquiring about arrests that resulted in non-convictions, and arrests, accusations, or convictions related to:
- First convictions for Trespass, Disturbance of the Peace, or Assault in the Second Degree under the Maryland Code
- Convictions of misdemeanors if 3 years have passed since the conviction date, and date that any period of incarceration concluded
- Matters for which records are confidential or have been expunged under the Maryland Code
The Amendments state that employers must not base hiring or promotion decisions on any of the above specified records. The Amendments further state that they County Executive must adopt regulations to implement the provisions of the new prohibitions, which are to include necessary information for prospective employees and employers of their rights and obligations.
Montgomery County employers should consult with their legal counsel regarding their practices for screening applicants and employees and considering their criminal histories. Employers should consider reviewing use of the specified offenses and recent misdemeanor convictions at the county level, given the new restrictions. Sterling clients should contact their account representative if they have questions or want to modify their screening program.
The full text of Bill 35-20 can be found here.
The Information contained herein is for informational purposes only. Sterling is not a law firm, and none of the information contained in this notice is intended as legal advice. Clients are encouraged to consult with their legal counsel about the impacts of any requirements. This and other important legislative updates can be found on the Sterling website: https://www.sterlingcheck.com/resources/compliance-updates/
Jan 19, 2021 @ 10:30 AM EST | United States
Motor vehicle record (MVR) searches for Georgia became unavailable on Friday, January 15, 2021. Please note the system issue was resolved on Monday, January 18, 2021, and pending searches have been processed. Thank you for your patience.
Jan 14, 2021 @ 2:00 AM EST | United States
Sterling offices in the U.S. will close Monday, January 18, 2021, to celebrate Martin Luther King Jr. Day. Most U.S. courthouses, schools in session, and many businesses will also close in observance of the federal holiday. We also anticipate court closures and/or delays on Inauguration Day, Wednesday, January 20, 2021. As a result:
- Sterling offices in the U.S. will close, and will resume business as usual on Tuesday, January 19, 2021.
- Criminal searches and verifications with external dependencies are expected to be delayed by 24 to 48 hours.
- Patient service centers (PSC) and eScreen managed sites may close or experience delays. We recommend candidates and employees call their chosen collection site to verify hours of operation.
If you have any questions, please do not hesitate to contact your Sterling Client Success representative.
Jan 13, 2021 @ 11:12 AM EST | United States
Starting Wednesday, January 13, 2021, from 7:00 p.m. to 7:00 p.m. ET, Sunday, January 17, 2021, a Federal Motor Carrier Safety Administration (FMCSA) state partner will conduct scheduled system maintenance, which may impact some Clearinghouse users’ ability to verify commercial driver’s license (CDL) information from the state of Georgia. If you are unable to conduct a required pre-employment query during this system maintenance period, you may hire a driver using solely the procedures set forth in 49 CFR 391.23(e), as outlined in the Clearinghouse FAQ. Once the system maintenance is complete, the requirement to conduct pre-employment queries prior to engaging a driver in safety-sensitive functions will be in effect for all employers.
