Written By: Kim Harms-Wilson, kharms@validityscreening.com
Legal Disclaimer: Validity Screening Solutions provides this material for educational and informational purposes only, and shall not be construed as legal advice, express or implied. For questions regarding your organization’s practices and compliance with applicable laws, please consult with your legal counsel.
Municipal and State News
Clean Slate & Fair Chance
New York’s Clean Slate Act: Additional Obligations For New York Employers
New York’s Clean Slate Act took effect November 16, 2024. Under this Act, thousands of eligible criminal records will be automatically sealed. The New York State Court System has three years to seal all eligible convictions. Misdemeanors will be sealed three years, and felonies will be sealed eight years, from release from prison or imposition of sentence if there was no incarceration. Certain exemptions exist for convictions such as non-drug related Class-A felonies, sex offenses, and sexually violent offenses.
Additionally, the Act provides new obligations for New York employers. Regardless of whether the employer seeks to take adverse action, if the employer conducts a background check that reveals criminal history, the employer must provide the individual with the following documents and information:
- A copy of report/criminal history information.
- A copy of Article 23-A of the New York Correction Law.
- Inform the individual of their right to “seek correct of any incorrect information.”
New York employers should consult with qualified legal counsel to review and update their background screening practices.
Click here for the full article.
San Diego County’s Fair Chance Ordinance: Requirements for Employers
The San Diego County Fair Chance Ordinance (SDFCO) took effect on October 10, 2024. The new ordinance applies to employers with five or more employees who are located or doing business in the unincorporated areas of San Diego County, California. This includes employers conducting business remotely. Per the ordinance, covered employers cannot inquire about or consider an applicant’s criminal history prior to a conditional offer of employment.
Before making an employment decision based on criminal history, the employer must conduct a written individualized assessment. Additionally, the employer must notify the applicant in writing, which includes the following information:
- The disqualifying conviction(s)
- A copy of the criminal background check report
- Notice of the right to file a complaint with the Office of Labor Standard and Enforcement (OLSE) for a violation of the Fair Chance Act.
- An explanation of the right to respond before the adverse action decision becomes final.
The employer must allow the applicant at least five business days to respond to the pre-adverse notice. If the applicant disputes the report, the employer must allow an additional five business days for the applicant to submit evidence.
Click here for the full article and more information.
U.S. Virgin Islands Fair Chance for Employment Act: What Employers Need To Know
The U.S. Virgin Islands Fair Chance for Employment Act, effective this year, enhances protections for individuals with criminal records and regulates criminal history inquiries in hiring. It encompasses a variety of employers, with specific exemptions.
Under the law, employers cannot ask about an applicant’s criminal history until they determine the applicant is “otherwise qualified” for the position. Criminal history inquiries may only occur after extending a conditional job offer. If an employer is considering rescinding the job offer based on the criminal background check, they must adhere to the following process in accordance with obligations under both the Fair Credit Reporting Act (FCRA) and the Fair Chance for Employment Act:
- Conduct an individualized assessment.
- Send a pre-adverse action notice.
- Allow the applicant time to review the report and dispute inaccuracies.
- Issue a final adverse action notice if no dispute is filed or resolved.
- Provide a written explanation that criminal history was the reason for rescinding and allowing the applicant to meet with them or a representative.
Click here for the full article.
Marijuana Legalization & Expungements
New Jersey Bill Protects Expunged Cannabis and Criminal Records
The New Jersey Senate Law and Public Safety Committee approved legislation in October to protect expunged records from background checks. Bill A3881/S2513 would prevent the New Jersey State Police from disclosing information about to-be-expunged offenses. Current law prohibits sharing expunged convictions outside law enforcement, corrections, or the judiciary.
However, the State Police often experience processing delays with court-issued expungements, which resulted in prospective employers receiving information that should be sealed, negatively affecting job, housing, and education opportunities. These issues have even prompted a class action lawsuit by the Office of the Public Defender. The bill is pending one more floor vote before reaching the Governor’s desk.
Nebraska Voters Legalize Medical Marijuana
In November 2024, Nebraska voters approved medical marijuana through two ballot measures. Initiative Measure 437 allows qualified patients with a healthcare practitioner’s recommendation to use, possess, and acquire up to five ounces for medical purposes, and permits caregivers to assist them.
Initiative Measure 438 exempts registered private entities from state penalties related to the possession, manufacture, distribution, delivery, and dispensing of medical cannabis and establishes the Nebraska Medical Cannabis Commission to oversee these activities.
Click here for the full article.
Consumer Privacy
Illinois Passes Broad Legislation on the Use of Artificial Intelligence in Employment Decisions
Effective January 1, 2026, House Bill 3733 (H.B. 3733) will ban employers from using artificial intelligence (AI) software that risks discrimination against employees based on protected class status. The Act covers AI use in multiple employment actions and mandates employee notifications, reflecting ongoing efforts to combat AI bias in employment. Other states are proposing similar regulations, and the federal government has cautioned employers about unregulated AI use. Illinois employers should review their practices with qualified legal counsel to ensure compliance.
Click here for the full article.
More Consumer Privacy Laws to Take Effect In 2025
As of December 2024, 20 states have passed consumer privacy laws. Three states enacted laws in 2024, while eight states have laws effective this year. This National Law Review article includes three charts comparing these state laws. Employers should assess these laws for coverage and update relevant policies.
Click here to view the charts and full article.
Other State Developments
California Still Seeing Delays with Criminal Background Checks
Employers hiring candidates out of California are still facing delays with criminal history searches. Currently, background screeners cannot use dates of birth or driver’s license numbers as search terms in electronic criminal record searches. This limitation stems from a California Court of Appeal decision. Although the ruling pertained to Riverside County, multiple superior courts statewide have been restricting or removing access to dates of birth on online public terminals.
New Jersey Now Requires Background Checks for Health Professionals
Effective September 2024, New Jersey requires background checks for health care practitioners. Under bill A1128/S2311, applied behavior analysts, art therapists, dieticians and nutritionists must undergo a criminal background check when applying for a professional license. The new law now permits the boards overseeing the licensure of these health care practitioners to access the FBI database for these checks.
Click here for the full article.
Senate Bill 1100 Prohibits California Employers from Requiring Drivers Licenses For Job Positions Unless It Meets Certain Criteria
California Governor Gavin Newsom signed Senate Bill 1100 (SB 1100), which amends the Fair Employment Housing Act (FEHA) to eliminate employment barriers related to unnecessary driver’s license requirements. In an effort to remove these barriers, SB 1100 establishes a two-part criteria for employers to meet before including a driver’s license requirement in the job posting, advertisement, application, or other material.
- Driving must be reasonably expected to be one of the job functions for the position, AND
- The employer must reasonably believe that using an alternative mode of transportation to satisfy the job function would not be comparable in travel time or cost to the business.
It is recommended that California employers evaluate their job positions, revise job descriptions as needed, review policies, and train hiring staff accordingly.
Please click here for full article.
Federal News
CFPB Issues Guidance on Employer Use of Monitoring and Screening Tools and Related FCRA Obligations
The Consumer Financial Protection Bureau (CFPB) issued a circular on October 24, 2024 regarding employee monitoring, assessment, and artificial intelligence (AI) tools, indicating that employers may be obligated to comply with the Fair Credit Reporting Act (FCRA) when using these methods. For example, if an employer uses monitoring tools to track productivity, they may be required to follow the same end-user FCRA requirements as they would for background checks. This includes providing disclosures, obtaining authorization, limiting reports to permissible purposes, and adhering to pre-adverse and adverse action requirements.
Department of Labor Releases Framework on Artificial Intelligence & Inclusive Hiring
On September 24, 2024, the U.S. Department of Labor (DOL) announced the publication of “AI & Inclusive Hiring Framework” (“Framework”) and issued guidance on best practices for AI tools in the workplace on October 16, 2024. The Framework outlines 10 key focus areas and goals:
- Identify Legal Requirements
- Establish Staff Roles
- Inventory Technology
- Work With Vendors
- Assess Impacts
- Provide Accommodations
- Use Explainable AI
- Ensure Human Oversight
- Manage Incidents
- Monitor Regularly
For each focus area and goal, the Partnership on Employment & Accessible Technology (PEAT) provided resources and additional guidance.
Click here for the full article.
DOT Issued Notice of Proposed Rulemaking Regarding Oral Fluid Drug Testing Requirement
In December 2024, the U.S. Department of Transportation (DOT) issued a notice of proposed rulemaking to amend the drug testing provision of its 2023 oral fluid drug testing rule, deemed “impossible to comply with.” Provision 40.67(g)(3) mandates an oral fluid test is required if a collector of the same gender as the donor cannot be found, including situations involving nonbinary or transgender individuals.
This provision is unfeasible because the Department of Health and Human Services (HHS) has not certified any oral fluid testing laboratory, preventing implementation for transportation employees. The DOT proposes to modify the rule to rely on urinalysis instead. The public comment period for this proposal ended on January 8.
Click here for the full article.
