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.

Arkansas

Preemployment Inquiries Law
Arkansas now requires central registry checks for all public school employees and bus drivers (Act 1173 (H. 1450), L. 2009, at AR ¶4-9000).

California

Criminal Background Checks Law
The Attorney General is authorized to provide criminal history information to any foreign government if the information is requested by the individual who is the subject of the record and if that information is needed in conjunction with the individual's application to adopt a minor child who is a citizen of that foreign nation. Also, the Department of Justice is required to disseminate the date and agency name associated with all retained peace officer or nonsworn law enforcement agency employee preemployment criminal offender record information search requests. The Department must retain an individual's fingerprint images and related information submitted as part of a peace officer or nonsworn law enforcement agency employee preemployment criminal offender record information search request. Penal Code, Part 4, Title 1, Chapter 1, Article 3, Sections 11105 and 11105.06, as amended and enacted by Ch. 97 (A.B. 297), L. 2009 and Ch. 441 (A.B. 428) L. 2009, effective Jan. 1, 2010. Paras 5-23,604.01 and 5-23, 604.051.

Illinois

Preemployment Inquiries Law
The Carnival and Amusement Rides Safety Act has been amended with respect to criminal history records checks for carnival workers (P.A. 151 (S. 1408), L. 2009, at IL ¶14-9000).

Recordkeeping/Posters Law
The Carnival and Amusement Rides Safety Act has been amended to add recordkeeping requirements for employers (P.A. 151 (S. 1408), L. 2009, at IL ¶14-9900).

Minnesota

Drug Testing Law
The controlled substance and alcohol use and testing exemption for specified state government employees has been expanded (Ch. 55 (S. 1172), L. 2009, at MN ¶24-8600).

New York

Criminal Background Checks Law
Prospective unlicensed employees of nursing homes, certified home health agencies, licensed home care services agencies and long term home health care programs who will provide direct care or supervision to patients, residents or clients of such providers are required to undergo a criminal background check as a condition of employment. The adopted regulation establishes standards and procedures for criminal history record checks and govern the procedures by which fingerprints will be obtained and describe the requirements and responsibilities of the Department and the affected providers with regard to this process Title 10, Chapter V, Subchapter A, Article 1, Part 402, Sections 401.1 through 401.10, as adopted as permanent Nov. 11, 2009).

North Carolina

Drug Testing Law
North Carolina has amended its workplace drug testing law to provide that a prospective employee required to submit to a controlled substance examination whose first screening test produces a positive result may waive a second examination that is intended to confirm the results. Also, all screening tests for current employees that produce a positive result shall be confirmed by a second examination of the sample utilizing a specified method (Session Law 2009-535 (S. 643), L. 2009, enacted and effective August 28, 2009, at NC ¶34-8600).

Ohio

Criminal Background Checks Rules
Teachers, substitutes, educational aides, holders of pupil activity supervisor permits, positions that require a license issued by the state board of education, or non-licensed personnel are required to undergo a criminal background checks as a condition of employment. A district may employ an applicant conditionally until the required criminal records check is completed and the district receives the results of the criminal records check. If the results of the criminal records check indicate that, the applicant does not qualify for employment or licensure, the district shall release the applicant from employment. Chapter 3301-20, Sections 3301-20-1 and 3301-20-03, as adopted effective Aug. 27, 2009. Paras 36-23,650.01 and 36-23,650.0

Criminal Background Checks Rules
No district shall employ any individual if he/she has been convicted of or pled guilty to a non-rehabilitative offense as a school bus and school van driver. A district shall release from employment an individual if the results of a criminal records check indicate that, the applicant does not qualify for employment. Chapter 3301-83, Section 3301-83-23, as adopted effective Aug. 27, 2009. Para 36-23,650.12.

Pennsylvania

Proposed HR Guideline
The Pennsylvania Human Relations Commission wishes to implement a non-legally binding guideline regarding criminal checks (http://www.pabulletin.com/secure/data/vol39/39-48/2209.html). The commission feels that not hiring an individual because of a prior criminal conviction has a disparate impact on certain minorities in proportion to their representation in the overall population. If you wish to comment on this proposed guideline, please email phrc@state.pa.us with the subject line “Comments on Proposed Policy Guidance” before January 26, 2010.

Utah

Preemployment Inquiries Law
An employer that is not a health care facility and that is hiring an individual to provide services to an elderly or disabled person in the home of the elderly or disabled person may obtain a background check of the individual from the Department of Health via the database of substantiated abuse and neglect cases. However, the employer must certify to the department that the employer intends to hire, or has hired, the individual whose information the employer has submitted to the department for the purpose of providing care to an elderly adult or a disabled person in the home of the elderly adult or disabled person (Ch. 267 (H. 142), L. 2009, at UT ¶46-9000).

Employment Selection Procedures Act—Topic added
An employer may not request an applicant's Social Security Number, date of birth, and driver license number before (a) the individual is offered a job or (b) if applicable to a specific position for which the applicant is applying, and with the applicant's consent, at the time in the employer's employment selection process when the employer obtains a criminal background check; credit history (subject to federal Fair Credit Reporting Act requirements); or driving record from the Driver License Division. Such information collected in the initial application process can not be used by the employer for any other purpose than to determine whether or not the employer will hire the applicant as an employee. Ch. 174 (H.B. 206), L. 2009, effective May 12, 2009. Paras 46-21,600.01 through 46-21,600.07.

Wisconsin

Criminal Background Checks Rules
The term “substitute caregiver” was added to the definitions. Also, the list of crimes currently listed under s. 50.065 (1) (e), Stats., which entities already use to determine an individual’s eligibility to work for the entity as a caregiver, added the following additional crimes: (1) theft; (2) robbery; (3) financial card transaction crimes; (4) identity theft; and (5) drug crimes. Chapter HFS 12, Sections HFS 12.03 and HFS 12.115, as amended effective July 1, 2009. Paras 52-23,650.03 and 52-23,650.115.

Criminal Background Checks Rules
Gov. Jim Doyle (D) signs SB 331, which requires child care providers to undergo a criminal background check at least every three months. The measure would also, among other things, permanently ban providers from the state-run child care program if they are convicted of certain offenses, including crimes against children, most felonies, welfare fraud or lying on a background check (MILWAUKEE JOURNAL SENTINEL).

FEDERAL UPDATES

Genetic Information Non-Discrimination Act
Employers must comply with the Genetic Information Non-Discrimination Act on November 21. Title II of GINA prohibits employers with 15 or more employees from: (1) discriminating against employees or applicants based on genetic information in hiring or any other terms, conditions or privileges of employment; (2) acquiring genetic information, except pursuant to certain, limited exceptions; and (3) disclosing that genetic information. Employers must keep genetic information confidential and in a separate medical file (genetic information may be kept in the same file as other medical information in compliance with the ADA). Covered entities also cannot retaliate against individuals who assert their rights under GINA.

DHS Issues Final Rule Rescinding No-Match Regulation
The Department of Homeland Security (DHS) has rescinded its controversial “no-match” regulation, according to a final rule published in the October 7, 2009, Federal Register. After careful review, DHS has decided to focus its worksite enforcement efforts on “increased compliance through improved employment verification, via participation in E-Verify, ICE’s Mutual Agreement Between Government and Employers (IMAGE) and other programs.”

INTERNATIONAL UPDATES

New Canadian Search Regulations
Effective immediately, criminal history results provided to GIS by the Canadian Police Information Centre (CPIC) are limited to either clear or unclear.  If the result is designated as “unclear”, GIS will return a response of “See Comments Below” in the background report and note that “there may or may not be a criminal record in existence. Information should be confirmed by fingerprint comparison.”  The individual would need to submit fingerprints at their local police agency in order to obtain complete results, which they would provide to you.

One other change related to the CPIC search is that two forms of identification from the individual, with one being a copy of a government-issued photo ID, must now be provided to GIS along with the Police Clearance Form before we can initiate the check. 

E-VERIFY UPDATES

E-Verify Extended Three Years
President Obama has signed the FY 2010 Department of Homeland Security (DHS) Appropriations Act (H.R. 2892), which includes various immigration measures, among them a three-year extension of the federal government’s E-Verify program and $137 million to operate the program and further improve its accuracy and compliance rates. E-Verify is the free, voluntary, web-based program operated by DHS, in partnership with the Social Security Administration (SSA), that allows participating employers to electronically verify the employment eligibility of their newly hired employees. The program compares information from the Form I-9, Employment Eligibility Verification, against federal government databases to verify workers’ employment eligibility.

Form I-9 Inspection Overview Document Released
Immigration and Customs Enforcement (ICE) has issued a Form I-9 Inspection Overview for stakeholders on the agency’s Form I-9 audit process and its civil monetary penalty schedule.

ICE Announces 1,000 I-9 Worksite Audits
U.S. Immigration and Customs Enforcement (ICE) announced the issuance of Notice of Inspections (NOIs) to 1,000 employers across the country associated with critical infrastructure. The notices alert business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with employment eligibility verification laws and regulations. This is part of a new initiative illustrating ICE's increased focus on holding employers accountable for their hiring practices and efforts to ensure a legal workforce.

E-Verify Announces Photo Matching Tool for Designated Agents
E-Verify announced that the photo matching tool will be made available for Designated Agents in late 2009. The photo matching process, also known as the photo screening tool, is an automated step in the E-Verify system which prompts you to compare an employee’s DHS-issued photo document (presented during the I-9 process) with a photo displayed in E-Verify. At present, the photo screening tool will only “activate” when an employee presents a recent version of a permanent resident card (I-551) or employment authorization document (EAD) as proof of employment authorization.

REMINDER:E-Verify Now Required for Federal Contractors
According to regulation 73 Fed. Reg. 67,651 (November 14, 2008), certain federal contracts awarded or solicited on or after Sept. 8, 2009, will be required to contain a new E-Verify clause. This clause will minimally require the use of E-Verify to confirm employment eligibility for all new hires and all employees who perform work directly under the contract. Employers, however, also have the option of screening all employees using E-Verify. See the last issue of the GIS eReport for the full article.

Reprinted with permission from CCH, a Wolters Kluwer Company