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STATE UPDATES
Note: GIS strongly recommends that our clients review the state statutes further and consult with their legal counsel on the impact these statues may have on them.
Florida
Healthcare Legislation
As of August 01, 2010, all persons seeking employment with a health care provider will be required to undergo a Level 2 screening (including fingerprinting) if they are expected to provide direct care or services or have access to client property, funds or living areas and all contractors must have a Level 2 screening if they are expected to provide personal care or personal services directly to clients.
Oregon
Credit Checks Update
Oregon has issued regulations that guide employers on how to apply Oregon’s new prohibition against using credit checks for employment purposes.
Law and Regulation
Earlier this year, the Oregon legislature passed Oregon Senate Bill 1045. Section 2(1) of the law prohibits an employer from obtaining or using a credit check for employment purposes. Section 2(2) provides exceptions. One of the main exceptions is:
The obtainment or use by an employer of information in the credit history of an applicant or employee because the information is substantially job-related and the employer's reasons for the use of such information are disclosed to the employee or prospective employee in writing.
The Oregon Bureau of Labor and Industries has issued a regulation that provides guidance on the meaning of this exception. The most relevant part of the regulation reads as follows (with the odd numbering actually appearing in the regulation):
- The determination of whether credit history information is substantially job-related must be evaluated with respect to the position for which the individual is being considered or holds.
- Credit history information of an applicant or employee is substantially job-related if:
(a) An essential function of the position at issue requires access to financial information not customarily provided in a retail transaction that is not a loan or extension of credit;
(A) Financial information customarily provided in a retail transaction includes information related to the exchange of cash, checks and credit or debit card numbers; or
(b) The position at issue is one for which an employer is required to obtain credit history as a condition of obtaining insurance or a surety or fidelity bond.
Analysis
We believe that the correct way to understand this regulation is that it sets a process for evaluating the general standard in the statute, adds two safe-harbors, and adds two implications.
The general standard in the statute is simply that the information is substantially job-related. The process that the regulation adds is that the employer must consider whether a credit check is substantially job-related for each position separately. This means that company-wide policies of obtaining credit checks on every position violate the regulation.
The regulation then adds two safe-harbors, which say when a credit check definitely is “substantially job-related.” This list of two is not exclusive – that is, a credit check can still be substantially job-related for a position even when the position is not within a safe-harbor. The second of the two safe-harbors is simpler, so we will deal with it first.
The second safe-harbor is for a position where the employer must obtain a credit check as a condition of insurance or a surety or fidelity bond. Typically, this will be for positions where an employee can steal significant amounts of cash or similarly liquid property.
The first safe-harbor is more complex and leads to two implications. This safe-harbor occurs when an essential function of the position requires access to financial information not customarily provided in a retail transaction other than a loan or extension of credit. This implies that loan officers are probably positions that are within the safe-harbor.
This safe-harbor then goes on to say an exchange of cash, checks, and credit and debit card numbers are definitely information customarily provided in a retail transaction. (Note that the list is not exclusive; there can be other types of information that are customarily exchanged in a retail transaction.) The implication of this is that cashiers are probably not positions that are within the safe-harbor. While an employer can argue that this express exclusion from a safe-harbor does not automatically mean that a credit check cannot be substantially job-related for a cashier position, the exclusion is very persuasive in the absence of any special facts that the employer shows.
What to Do
Employers should review their background screening practices to determine whether they are ordering credit checks. If so, they should check – separately for each position – what evidence they can present that the credit check is substantially job-related. This requires an examination of the risks the position entails. Employers should be more comfortable if those risks are comparable to those posed for a loan officer and less comfortable if the risks are comparable to those posed by a cashier. If employers believe that an essential function of the position requires access to non-retail financial information, then the written job descriptions for those positions should list those essential functions. This portion of the law comes into effect on July 1, 2010, so employers should focus on this immediately.
More Resources
Disclaimer
We are not a law firm and thus are not able to provide legal advice. If you need legal advice on the matters discussed above, we recommend that you consult with your legal counsel.
Failure to Complete I-9 Within 3 Days of Hire is a Substantive Violation
The US Department of Justice has decided that the failure to properly complete section 2 of the Form I-9 Employment Verification within three days of hire was a substantive violation, and not a procedural or technical violation. Findings of substantive violations can subject employers to higher fines and penalties.
Green Card Redesign
U.S. Citizenship and Immigration Services (USCIS) has redesigned the Permanent Resident Card—commonly known as the “Green Card”—to incorporate several major new security features. Among the benefits of the redesign:
- Secure optical media will store biometrics for rapid and reliable identification of the card holder.
- Holographic images, laser engraved fingerprints, and high resolution micro-images will make the card nearly impossible to reproduce.
- Tighter integration of the card design with personalized elements will make it difficult to alter the card if stolen.
- Radio Frequency Identification (RFID) capability will allow Customs and Border Protection officers at ports of entry to read the card from a distance and compare it immediately to file data.
- A preprinted return address will enable the easy return of a lost card to USCIS.
In keeping with the Permanent Resident Card’s nickname, it will now be colored green for easy recognition. USCIS will replace Green Cards already in circulation as individuals apply for renewal or replacement
Utah
As of July 01, 2010, all Utah employers with 15+ employees will be required to use a “status verification system” e.g. E-Verify, any federal equivalent of E-Verify or the Social Security Administration’s SSN verification service. Currently no provisions are included for non-compliance however the bill exempts employers using E-Verify or a similar system from civil liability under state laws governing the hiring of unauthorized aliens. It also exempts employers from liability in civil actions against them for refusing to hire a person if a status verification system indicates that a person is an unauthorized alien.
Virginia
Virginia Governor Robert McDonnell has signed into law HB 737, requiring all state agencies to enroll in E-Verify by December 2012. Each newly hired employee who is to perform work within the Commonwealth of Virginia will have to be processed through E-Verify.
REMINDER: Mississippi
As of July 01, 2010, employers with 30-99 employees will have to comply with the Mississippi Employment Protection Act (SB 2988) which requires all Mississippi agencies, political subdivisions, private employers, contractors, subcontractors and third-party employers that conduct business in Mississippi to use E-Verify.
REMINDER: South Carolina
As of July 01, 2010, all employers must perform special verification for newly-hired employees. These employers will be required either to use E-Verify or review a qualifying driver’s license or qualifying identification card.
Reprinted with permission from CCH, a Wolters Kluwer Company
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