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 Developments
Clean Slate and Fair Chance Updates
Prince George’s County, Maryland’s Employment Fairness Act for Returning Citizens Goes Into Effect September 16, 2024
On September 16, 2024, the Employment Fairness Act for Returning Citizens will take effect in Prince George’s County, Maryland. The new law expands the protections provided under Prince George’s County’s Ban the Box ordinance, which was enacted in 2015.
Covered employers include any employer with at least 10 full-time employees in Prince George’s County.The new law prohibits employers from the following:
- Inquiring about an applicant’s criminal history prior to the first interview.
- Conducting criminal record checks.
- Inquiring into or considering nonviolent felony convictions if the sentence was completed at least five (5) years prior to the application.
- Inquiring into or considering misdemeanor convictions if the sentence was completed at least 30 months ago.
- Inquiring into or considering arrest records, except for arrests that resulted in probation before judgment, which must then be treated as a misdemeanor for employment purposes.
- Inquiring into or considering arrests or convictions related to the possession of marijuana, cannabis, or related paraphernalia, provided the sentence has been completed.
New York State’s Clean Slate Act Will Take Effect November 16, 2024
Last November, New York Governor Kathy Hochul signed The Clean Slate Act into law. The law will become effective November 16, 2024. Under this law, the following convictions will be eligible for automatic sealing:
- Misdemeanor convictions after three (3) years.
- Felony convictions after eight (8) years.
Individuals with eligible convictions must have no pending criminal charges and have completed any probation or parole associated with the conviction.
Out-of-state convictions, federal convictions, sex offenses, and Class A felonies (not including drug possession and sale) will not be eligible for automatic sealing under this law.
CLICK HERE TO VISIT NEW YORK’S CLEAN SLATE WEBSITE FOR FAQS AND MORE
Delaware Begins Automatic Expungement For Certain Criminal Records
Delaware’s Clean Slate Law took effect on August 1, 2024. It was the fifth state to adopt such legislation. The law, passed in 2021, would allow for the automatic clearing of eligible records for 290,000 residents.
Under this law, non-convictions, misdemeanors after five years, and limited felonies after ten years qualify for automatic expungement. Click here for the full list of eligible records.
However, concerns persist about the automatic expungement process. Moreover, individuals must navigate a complicated verification process to check if their records have been expunged, either by visiting a court clerk’s office or paying a $72 fingerprinting fee for their certified criminal history.
Connecticut Struggles To Enforce Clean Slate Law
Connecticut enacted its “Clean Slate” law in 2021 to erase minor convictions, yet only 13,000 of the 120,000 eligible residents have had their records cleared, according to the Department of Emergency Services and Public Protection.
A second law passed last year introduced technical amendments to the original legislation. In December, Governor Ned Lamont promised that 80,000 people would have their convictions erased by the end of January this year, but that did not occur.
Officials attribute the delays to outdated computer systems. However, these implementation holdups are not unique to Connecticut, as Delaware, Michigan, Virginia, and Utah have also faced similar issues.
Los Angeles County’s New Fair Chance Ordinance Took Effect September 3
Los Angeles County’s Fair Chance Ordinance for Employers (FCO) is in full effect. As a reminder, this law applies to locations or employees (including remote workers) in the unincorporated areas of Los Angeles County. The City of Los Angeles has its own Fair Chance ordinance, which covers employers with locations or employees located in the City of Los Angeles and its neighborhoods.
The Los Angeles County Department of Consumer and Business Affairs (DCBA) will post sample notices and documents on their website. At the time of publishing, the DCBA has not posted the sample documents. In the meantime, compliance recommendations and suggested action items can be found in this Littler article. To learn more about the ordinance, click here.
Maryland Governor Signed Executive Order Pardoning Over 100,000 Misdemeanor Cannabis Convictions
In June 2024, Maryland Governor Wes Moore signed an executive order pardoning 175,000 misdemeanor cannabis-related convictions, including 150,000 for simple possession and 18,000 for drug paraphernalia. Individuals can confirm their pardons through the Maryland Judiciary online case search or by visiting their local courthouse.
Drug Testing and Marijuana Legalization Updates
Minnesota Amends Drug And Alcohol Testing In The Workplace Act
Minnesota recently amended its Drug and Alcohol Testing in the Workplace Act to allow “oral fluid testing” for drug, alcohol, and cannabis. This amendment provides employers with an additional testing option, but it does not change when or for which substances they can test.
Testing must still comply with statutory rules, ensuring that individuals receive their test results at the time of testing.
Compliance Recommendations For Ohio Employers Following The Start Of Recreational Cannabis Sales
Recreational cannabis sales in Ohio started on August 6. Residents aged 21 and older can buy and possess up to 2.5 ounces. Fisher Phillips offered six recommendations for Ohio employers to consider when creating a compliance plan. These include:
- Review and Update Drug Testing Programs and Procedures
- Review and Update Drug Testing and Other Relevant Policies
- Consider Substance Abuse Programs and Last Chance Policies
- Offer Training for HR Staff, Managers, and Supervisors On Use of Cannabis, Both Medical and Personal Use
- Be Alert and Train Supervisors On Recognizing Signs of Impairment
- Communicate with Employees
Marijuana Laws And Anti-Discrimination Laws In New Jersey: 7 Compliance Reminders For Employers
The New Jersey Attorney General asserts that a telecom company violated the state’s anti-discrimination law by refusing to hire a job applicant who tested positive for THC due to medical marijuana use. Legal action is being pursued under the New Jersey Law Against Discrimination (NJLAD), which prohibits employment discrimination based on disability. Fisher Phillips offers seven compliance reminders for employers in light of this case:
- Explore reasonable accommodations
- Track legislation.
- Note the exceptions.
- Questions remain about safety-sensitive positions.
- Focus on impairment
- Review and update policies.
- Work with qualified legal counsel.
Artificial Intelligence and Privacy Updates
Navigating California’s Complex Employment Landscape: Recent Developments in Background Checks and Privacy
A California court recently ruled that disclosing reasons for Administrative Per Se (APS) suspensions does not violate state privacy laws regarding non-conviction arrest information. This decision is a victory for California employers, who have faced challenges related to background screening and public record access, particularly in searching criminal and driving records. Employers in California can now review and consider APS suspensions, and the reasons for the suspensions, when evaluating job applicants.
Colorado Enacts Artificial Intelligence Act
Earlier this year, Colorado enacted the Artificial Intelligence Act to regulate AI use and development, set to take effect in February 2026. This article from Orrick outlines five key considerations for Colorado employers:
- The framework of the AI Act is likely to evolve before implementation.
- Primarily applies to high-risk AI systems.
- Developers must avoid algorithmic discrimination.
- Deployers have the same duty.
- Gives consumer rights relating to artificial intelligence systems.
NYC’s Automated Employment Decision Tools Law
New York City’s Local Law 144 of 2021 (“Local Law 144”) took effect on January 1, 2023, making it one of the few laws regulating AI in employment. It mandates that covered employers and employment agencies using “automated employment decision tools” (AEDT) must: (1) conduct a bias audit of the AEDT and publish the results, and (2) notify applicants and employees before using an AEDT.
Employers and employment agencies with operations or placements in New York City should evaluate their hiring and promotion tools and the vendors supplying them. Further assessment may be needed based on initial findings; employers may need to:
- Engage an independent auditor to conduct a bias audit.
- Update language in applicable job postings.
- Revise internal policies.
AI Overview: Impact On The Workplace
As AI evolves, lawmakers and agencies are implementing regulations for its workplace use. States like California, Colorado, and New York City have proposed or enacted AI laws, while the White House and the EEOC have issued guidance.
Although AI can enhance recruitment and hiring efficiency, employers must be aware of risks such as discrimination, compliance issues, and potential breaches of confidential information. To mitigate legal risks, employers should consider the following steps:
- Inform job applicants and employees of any AI tools being used in evaluation or the selection process.
- Have accommodations available, especially in the event a candidate requests disability accommodation.
- Create and implement AI usage policies.
- Be hypervigilant in selecting AI vendors. Have a vetting process to ensure their systems are compliant.
- Validate results from the tool and compare with human decision-maker’s results.
- Stay alert of pending and existing AI legislation.
Other Municipal and State Updates
Illinois Governor Signs Senate Bill 0508 Into Law
Illinois Governor JB Pritzker signed Senate Bill 0508 into law on August 9, 2024, effective January 1, 2025. This law enhances employment protections for individuals identified by employment eligibility verification systems (e.g., E-Verify) with identification discrepancies and clarifies rights in case of an E-Verify “no match.”
Under this law, Illinois employers cannot impose verification requirements beyond federal standards. If a discrepancy is claimed in an employee’s verification information, the employer must provide specific notices. The law also grants additional rights and protections to employees.
To learn more about the provisions and requirements under SB 0508, click here.
Federal Developments
The Rescheduling of Marijuana and Its Potential Impact On Employers
On May 21, 2024, the U.S. Department of Justice (DOJ) proposed reclassifying marijuana from a Schedule I controlled substance to a Schedule III drug. While many employers have ceased testing for marijuana use, those in safety-sensitive industries are likely to maintain prohibitions on off-work use and continue testing for maijuana.
Employers should review and revise their drug testing policies to comply with state marijuana laws, ensuring consistent enforcement. Additionally, training for supervisors on recognizing and addressing impairment is crucial, particularly in states where marijuana testing is banned. Employers may also consider offering Employee Assistance Programs (EAPs) to educate employees on substance misuse risks and support those seeking to improve their health.
FTC Guidance on AI Chatbots
The Federal Trade Commission (FTC) warns companies of using AI chatbots, offering five “don’ts” in its Business Blog to protect consumers and promote transparency and accountability. The five “don’ts” are:
- Don’t misrepresent what these services are or can do.
- Don’t offer these services without adequately mitigating risks of harmful output.
- Don’t insert ads into a chat interface without clarifying that it’s paid content.
- Don’t use consumer relationships with avatars and bots for commercial manipulation.
- Don’t violate consumer privacy rights.
Other Industry Developments
Former Amazon Employee Filed Lawsuit Alleging FCRA Violation
A former Amazon employee lost her appeal in a class action lawsuit against Golden State, FC, LLC (Amazon.com Services LLC) and Amazon.com, Inc. The complaint, filed on January 8, 2020, in San Francisco Superior Court, stemmed from her employment application in September 2016 and subsequent work start date of October 31, 2016, following a background check authorization. She initiated legal action three years after leaving the company, alleging Amazon violated the Fair Credit Reporting Act (FCRA) by obtaining her background check without providing a compliant disclosure form.
A superior court judge granted Amazon’s summary judgment motion, ruling the claim was time-barred. The plaintiff contended this ruling was erroneous, but the appellate court upheld the decision, stating she should have been aware of the background check by her hire date. Since the lawsuit was filed over two years after that date, it was deemed untimely under the FCRA’s statute of limitations.
