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Data privacy has been a top priority for employers the past several years. With no comprehensive...

Data privacy has been a top priority for employers the past several years. With no comprehensive federal privacy law, states are deciding how to handle privacy matters themselves. While each of these laws have their own nuances and requirements, adding to the already complex patchwork of laws for employers to navigate, they essentially all require businesses to take reasonable steps to protect consumer data privacy, confidentiality, and integrity. Ready to create your own background screening package with a provider who can help you navigate through compliance? Get Started Now. The goal of these laws is to protect an individual’s privacy rights and ensure that their personal data is handled responsibly and securely. Data privacy laws often require organizations to obtain consent from individuals before collecting their personal information, implement measures to safeguard data against unauthorized access or disclosure, and provide individuals with rights to access, correct, or delete their personal data. With new privacy laws being enacted across the country on nearly a monthly basis, employers must stay diligent in their compliance efforts. To help, we’ve compiled the latest privacy laws for review. 2024 Data Privacy Laws The following states have enacted data privacy laws since January of 2024. New Jersey On January 16, 2024, the New Jersey Data Privacy Law was signed into law. Under the law, controllers (individuals or legal entities that determine the purpose and means of processing personal information) that conduct business in the state or produce products or services targeted to state residents and within the calendar year (i) control or process personal data of at least 100,000 New Jersey consumers or (ii) control or process personal data of 25,000 New Jersey consumers and derive revenue (or receive discounts) from the sale of personal data, must provide consumers with certain rights. Consumers (defined as New Jersey residents acting only in an individual or household context) may: confirm whether a controller accesses and processes their personal data; correct inaccuracies in their personal data; delete their personal data; obtain a copy of their personal data held by the controller in a readily usable format (i.e., data portability); and opt out of processing of their personal data for the purposes of targeted advertising, the sale of their personal data, or profiling. Among other obligations, the law requires controllers to provide consumers a “reasonably accessible, clear, and meaningful” privacy notice that includes: the categories of personal data the controller processes; its purpose for processing the data; the categories of all third parties to which the controller may disclose the personal data; the categories of data the controller may disclose; information on how consumers may exercise their rights and appeal the controller’s decisions; the process by which the controller notifies consumers of material changes to their notice, along with the effective date of the notice; and an active email address or other online mechanism the consumer may use to contact the controller. New Jersey’s data privacy law will become effective January 15, 2025. New Hampshire On March 6, 2024, New Hampshire enacted the New Hampshire Privacy Act. Under the law, controllers (individuals or legal entities that determine the purpose and means of processing personal information) that conduct business in the state (or produce products or services targeted to state residents) and within a one-year time period (i) control or process personal data of at least 35,000 New Hampshire consumers or (ii) control or process personal data of 10,000 New Hampshire consumers and derive more than 25% of gross revenue from the sale of personal data, must provide consumers with certain rights. New Hampshire consumers (defined as New Hampshire residents acting only in a personal capacity) have the following rights under the new law: confirm whether a controller is processing their personal data and providing access to their data, unless providing confirmation and access would require the controller to reveal a trade secret; correct inaccuracies in their personal data; delete their personal data; obtain a copy, in an accessible format, of their personal data processed by the controller (i.e., data portability); and opt out of the processing of their personal data for the purposes of targeted advertising, the sale of their personal data, or profiling. Among other obligations, New Hampshire’s law requires controllers to provide consumers a “reasonably accessible, clear, and meaningful” privacy notice that includes the following: the categories of personal data it processes; its purpose for processing the data; the categories of third parties to which it may disclose the personal data and which categories of data it may disclose; information on how consumers may exercise their rights and appeal the controller’s decisions, and an active email address or other online mechanism for the consumer to directly contact the controller. New Hampshire’s data privacy law will become effective January 1, 2025. Kentucky On April 4, 2024, Kentucky enacted the Kentucky Consumer Data Protection Act (“Kentucky CDPA”). Under the law, controllers (individuals or legal entities that determine the purpose and means of processing personal information) who either conduct business in the Commonwealth of Kentucky or produce products or services targeted to residents of Kentucky and who, within the calendar year, either (i) control or process personal data of at least 100,000 Kentucky consumers or (ii) control or process personal data of 25,000 Kentucky consumers and derive over 50% of gross revenue from the sale of personal data, must provide consumers with certain rights. Kentucky consumers (defined as a Kentucky resident acting only in an individual context) have the following rights under the new law: confirm whether a controller is processing their personal data and access their data, unless providing confirmation and access would require the controller to reveal a trade secret; correct inaccuracies in their personal data; delete their personal data; obtain a copy of the personal data previously provided to the controller in a readily useable format (i.e., data portability); and opt out of the processing of their personal data for the purposes of targeted advertising, the sale of their personal data, or profiling. Among other obligations, Kentucky’s law requires controllers to provide consumers a “reasonably accessible, clear, and meaningful” privacy notice that includes the following: the categories of personal data it processes; its purpose for processing the data; the categories of third parties to which it may disclose the personal data and which categories of data it may disclose; information on how consumers may securely and reliably exercise their rights and appeal a controller’s decisions. Kentucky’s data privacy law will become effective January 1, 2026. Nebraska On April 17, 2024, Nebraska enacted the Nebraska Data Privacy Act, which imposes obligations on controllers—a person that conducts business in Nebraska or produces a product or service consumed by residents of Nebraska; processes or engages in the sale of personal data; and is not a small business as determined under the federal Small Business Act, except if such person engages in the sale of sensitive data without receiving prior consent from the consumer. Nebraska’s law is broader than many other states in that it does not contain a revenue threshold nor a minimum number of consumers whose personal data is processed or sold for it to apply (similar to Texas’s law). Nebraska consumers (defined as Nebraska residents acting only in an individual or household, and not in a commercial or employment, context) have the following rights under the new law: confirm whether a controller is processing their personal data and access the personal data; correct inaccuracies in their personal data, taking into account the nature of the personal data and the purposes of the processing of their personal data; delete their personal data provided by or obtained about the consumers; obtain a copy of their personal data that the consumer previously provided to the controller in a portable and readily usable format (to the extent technically feasible)(i.e. data portability); and opt out of the processing of their personal data for the purposes of targeted advertising, the sale of their personal data, or profiling in furtherance of a decision that produces a legal or similarly significant effect concerning the consumer. Among other obligations, the law requires controllers to provide consumers a “reasonably accessible and clear” privacy notice that includes: the categories of personal data processed by the controller; its purpose for processing the personal data; information on how consumers may exercise their rights and appeal a controller’s decisions; the categories of all third parties to which it shares the personal data and which categories of data it shares; and a description of at least two methods the consumer may use to submit a request to exercise a consumer right. Similar to the California Consumer Privacy Act and the Connecticut Data Privacy Act, “sale” is broadly defined as the exchange of personal data for monetary or other valuable consideration by the controller to a third party. The law also imposes requirements on “processors”—a person who processes personal data on behalf of a controller. Nebraska’s data privacy law will become effective January 1, 2025. Maryland On May 9, 2024, Maryland enacted the Maryland Online Data Privacy Act. Under the comprehensive law, controllers (individuals or legal entities that, along or jointly with others, determine the purpose and means of processing personal information) that conduct business in the state or produce products or services targeted to state residents and within the calendar year (i) control or process personal data of at least 35,000 Maryland consumers or (ii) control or process personal data of 10,000 Maryland consumers and derive more than 20% of gross revenue (a lower threshold than most other states) from the sale of personal data, must provide consumers with certain rights. Maryland consumers (defined as Maryland residents acting only in a personal capacity) have the following rights under the new law: confirm whether a controller is processing their personal data and providing access to their data, unless providing confirmation and access would require the controller to reveal a trade secret; correct inaccuracies in their personal data; delete their personal data; obtain a copy, in an accessible format, of their personal data processed by the controller (i.e., data portability); and opt out of the processing of their personal data for the purposes of targeted advertising, the sale of their personal data, or profiling. Among other obligations, Maryland’s law requires controllers to provide consumers a “reasonably accessible, clear, and meaningful” privacy notice that includes the following: the categories of personal data it processes, including sensitive data; the categories of personal data shared with third parties, including sensitive data; the purposes for processing the data; information on how consumers may exercise their rights and submit an appeal; an active email address or other online mechanism that allows the consumer to contact the controller; and a disclosure if the controller sells personal data to third parties or processes personal for targeted advertising or profiling. Maryland’s data privacy law will become effective October 1, 2025. What Employers Can Do In this rapidly evolving data privacy environment, staying informed by proactively monitoring legislative changes is key for employers. A comprehensive strategy may include: Conducting regular audits of consumer data usage. Staying updated on new or amended laws in relevant jurisdictions. Maintaining a compliance checklist to ensure alignment with privacy requirements across all states in which business is conducted. While using these and other strategies is helpful, as always, employers should consult legal counsel and a PBSA-accredited background screening partner about compliance matters. Why Orange Tree? Orange Tree Employment Screening helps companies win their race to fill open positions by providing fast and easy background check and drug testing services. We are committed to helping our clients stay updated with compliance, such as with the AI regulatory landscape, create safer workplaces, mitigate financial risk, and avoid legal exposure. We forge long-term partnerships with our clients by offering a full range of technology-led screening solutions predicated on best practice and legally defensible screening programs. To get started with a background screening program tailored to your needs, you can schedule time to Speak with Our Team.

HR Compliance, More Impactful Now than Ever Before

The compliance landscape has become increasingly...

HR Compliance, More Impactful Now than Ever Before The compliance landscape has become increasingly challenging for employers over the past several years. As they navigate the already intricate patchwork of federal, state, city, and county legislation, various new laws and regulations continue to be passed across the country. Traditionally, the complexity surrounding this patchwork landscape stemmed from criminal justice reforms and marijuana legalization. But now, it continues to evolve with the emergence of laws surrounding comprehensive data privacy, clean slate, pay transparency, and AI restrictions, among others. The growing set of standards only further complicates compliance efforts for employers, especially those operating across state borders. Many are left concerned about the consequences of noncompliance and specifically the enforcement actions taken by states. Ready to create your own background screening package with a provider who can help you navigate through HR compliance? Get Started Now. Non-Compliance Enforcement Actions Employers are justifiably concerned. Several jurisdictions have appointed agencies dedicated to enforcing these emerging laws. This is not necessarily a new phenomenon, but it is increasing. For example, back in 2019, Washington, D.C. enforced its Ban the Box law to the tune of $500,000 and more than 1,100 administrative charges filed against employers who were continuing to ask about criminal histories on job applications. Regarding the violations, a vast majority of them (more than 90%) were related to criminal background questions that appeared on job applications, while less than 5% were related to questions an employer asked in an interview. Since then, there are more laws, more lawsuits, more civil penalties, and more scrutiny, including from the federal government. Federal Communications Commission Partners with States for Data Protection In December of 2023, the Federal Communications Commission (FCC) announced a first of its kind partnership with four states to collaborate on enforcement actions related to consumers’ privacy, data protection, and cybersecurity. In this joint task force, the attorneys general of Connecticut, Illinois, New York, and Pennsylvania have pledged to share their expertise, resources, and coordinate efforts to conduct investigations for the protection of consumers. In consideration for their efforts, the FCC has offered partner states not only the expertise of its enforcement staff but also important resources and remedies to support their investigations. State Enforcement Headlines of Interest The California Civil Rights Department recently filed a lawsuit against a grocery chain, Ralph’s Grocery Company, for alleged violations of California’s Fair Chance Act. Enacted in 2018, the Fair Chance Act prohibits employers from inquiring about conviction history before a conditional job offer and limits disqualifying convictions to those directly related to job responsibilities. The California Civil Rights Department (CRD) enforces the Act to combat discrimination and enhance public safety, reflecting California’s commitment to fair employment practices. In the lawsuit, the CRD claims that the employer denied employment opportunities to applicants with criminal histories. It goes further in alleging that the company unlawfully screened out qualified candidates based on irrelevant criminal backgrounds. The Department is seeking monetary damages for the workers who were denied jobs or lost jobs as a result of the grocery chain’s screening practices, as well as a court order to require it to come into compliance with the Fair Chance Act. New Jersey Issues Violations under Fair Chance Housing Act Fair Chance Acts also often apply to housing, as many are now aware in New Jersey, where the state issued 30 notices of violation to housing providers in 2022. The state alleged violations of its Fair Chance Housing Act (“Act”), which prohibits landlords from asking about an applicant’s criminal history on an application or in an interview prior to making the applicant a conditional offer of housing. It also prohibits them from stating in any housing advertisements that they will not consider applicants with a criminal record. The violations were centered on allegations that the housing providers asked prohibited questions on housing applications, posted housing advertisements, and maintained policies that did not comply with the law. Recipients of violation notices faced civil penalties of up to $1,000 for a first offense, up to $5,000 for a second offense, and up to $10,000 for any subsequent offense. Colorado Enforces Wage Transparency Law Colorado’s Wage Transparency Law is considered one of the most aggressive to date because of the requirement to post salaries publicly. The Colorado Department of Labor and Employment (CDLE) has similarly demonstrated that enforcement may also be more aggressive. While the CDLE had been more lenient regarding enforcement in the past, when the law was still relatively new, it has since notified more than 200 companies regarding violations and issued fines for noncompliance. It sent over 125 Compliance Assistance Letters for remote jobs and over 120 Opportunity to Cure Letters (giving employers an opportunity to cure violations) in response to complaints of violations and fined multiple employers. The extent of the violations varies from listings that shared no wages at all to others that had no maximum amount (only a “+” sign, such as “Salary Range: $50,000 – 75,000+”) to others that offered “full benefits” without a description of those benefits. How to Stay Compliant as an Employer The examples above are only a select few that illustrate the steadfast commitment of states to enforcing these compliance laws. In a rapidly evolving regulatory landscape, staying informed isn’t just beneficial; it’s essential. Proactively monitoring and understanding legislative shifts is key to maintaining compliance and mitigating risks in this ever-changing environment. Employers should consider developing a comprehensive HR compliance strategy that, at a minimum, includes: A process for a regular (at minimum quarterly) review and audit of the organization’s hiring practices, including, but not limited to: (a) application questions; (b) interview questions; (c) salary ranges posted in job positions; (d) how consumer data is being used, and; (e) written HR policies regarding hiring. A system for the review of any new or amended laws in the jurisdictions in which business is conducted. An HR compliance assurance checklist to ensure hiring practices are in alignment with these laws’ requirements. A provision to consult a background screening partner or legal counsel on all compliance matters. In a landscape of uncertainty, one thing appears certain, states are taking enforcement of these laws very seriously. Compliance is an ongoing endeavor that requires continuous monitoring. While this prospect may seem daunting for employers, using the above strategies will help provide a more efficient and risk-adverse navigation of it all. Why Orange Tree Employment Screening? Employers must remain diligent regarding state developments to ensure their policies and procedures remain in compliance. Additionally, those that use a consumer reporting agency for their background screening services should prioritize partnering with one that has achieved accreditation with the Professional Background Screeners Association (PBSA). Orange Tree is an expert in background screening services, including legal and compliance. We are proud to be members of the PBSA. Orange Tree clients enjoy regular communications with updates to laws and legislation that impact them. Schedule time to Speak with Our Team to design a background screening program tailored to your unique needs.

Background checks provide information from various sources, including credit reports, criminal...

Background checks provide information from various sources, including credit reports, criminal records, government data sources and lists, employer history records, and education and professional license credential records. Performing a background check on potential hires and current employees can help you keep your workplace safe and avoid negligent hiring lawsuits. However, anytime you use information from background checks to make employment decisions, including hiring, retention, promotion, or reassignment. You must comply with the Fair Credit Reporting Act (FCRA). Under the FCRA, background checks are considered "consumer reports." Before running a background check (consumer report), employers must follow all the steps outlined in the FCRA. This post, we'll cover: What is the Fair Credit Reporting Act What are the employer's responsibilities under the FCRA? What is an Investigative Consumer Report? How the right background screening partner can help What is the Fair Credit Reporting Act? The Fair Credit Reporting Act (FCRA) is a federal law designed to regulate the use of consumer report information and other background information received about individuals from consumer reporting agencies (CRA) like Orange Tree. The Federal Trade Commission (FTC) and the Consumer Financial Protection Bureau (CFPB) have enforcement authority for the FCRA. Some states have their consumer protection and/or employment laws that may apply. Here are some helpful terms to help you better understand the FCRA and how it applies to background checks. Consumer Report – The background check. A Consumer Report contains only accurate information, such as employment dates, criminal records, and driving history. Consumer Reporting Agency – The background screening provider preparing the background report; often referred to as a "CRA." Investigative Consumer Report – Also a background check, but unlike a Consumer Report, includes information obtained through personal interviews. Disclosure – The document used to inform the consumer that they may be the subject of a background check. Authorization – The document signed by the consumer in which they authorizes preparation of the background check. Adverse Action – The process you must follow when considering an unfavorable employment decision based on the background or drug test. Consumer – The person who is the subject of the background check. User – The person who is requesting and using the background check (typically the employer or prospective employer). Watch FCRA Compliance Webinar On-Demand and Earn SHRM and HRCI Credits What are the employer's responsibilities under the FCRA? The FCRA is a consumer rights law with strict procedures that must be followed to ensure the information contained in "consumer reports" is as accurate as possible. Employers are required to both disclose their intention to obtain a consumer report and obtain written consent from applicants or current employees before requesting a consumer report. Before getting a consumer report: Step 1: Provide Disclosure Make a clear and conspicuous written disclosure to the candidate or employee that you might use information in their consumer report for decisions related to their employment. This must be in writing and a stand-alone format. The notice cannot be in an employment application. The notice should not be combined with any other form. Step 2: Obtain Authorization Get written authorization from the candidate or employee to do the background check. If you combine this authorization form with any other form, be sure to keep it separate from the Disclosure. If you want the authorization to allow you to get consumer reports throughout the entire length of a person's employment (evergreen consent), make sure you say so clearly and conspicuously. What is an Investigative Consumer Report? If the consumer report asks for information such as job performance, it falls into a special category of consumer report called an "Investigative Consumer Report." When an Investigative Consumer Report is requested, employers must: Disclose to the applicant that an investigative consumer report is being requested, along with a certain specified language. Unless it is contained in the initial Disclosure, the consumer must receive this additional Disclosure within three days after the request is made. The Disclosure must tell the applicant that they have a right to request additional information about the investigation's nature. If your CRA (background screening provider) is not obtaining authorization and Disclosure on your behalf, you must certify you have done the following: Have made the above Disclosure and gotten authorization from the candidate or employee to get a consumer report. Have and will comply with all of the FCRA requirements. Will not discriminate against the candidate or employee or otherwise misuse the information, as provided by any applicable federal or state equal opportunity laws or regulations. Other compliance considerations to note Some states have their consumer protection and/or employment laws that may apply. Some states and local jurisdictions also limit the timing of when a prospective employer may ask about or consider criminal record information about a candidate. Some states also restrict the consideration of credit history information in the employment context. How the right background screening partner can help The right background screening partner can be a strategic resource to help ensure you are FCRA compliant and on top of federal and state legislation and guidance. Orange Tree can help you promote compliance through your talent acquisition, human resources, and security processes. We provide a range of tools to streamline the screening process and keep you in compliance: FCRA compliant authorization and disclosure forms that can be delivered and signed electronically. Automated adverse action letters. Federal and State-specific documents. Schedule a free consultation to learn how to help streamline your business processes and mitigate risk by managing things like the authorization and disclosure process on your behalf, allowing your team to remain focused on key priorities.

Artificial Intelligence (AI) tools are being used by employers with more frequency to streamline...

Artificial Intelligence (AI) tools are being used by employers with more frequency to streamline processes and optimize employee performance. From resume screening to candidate matching, it’s clear AI isn’t going anywhere. However, the confusion surrounding AI’s use in various aspects of recruitment and hiring is increasing right along with it, leaving employers overwhelmed when considering their own hiring practices. AI in Hiring: Efficiency vs. Risk According to Ideal.com, 52% of talent acquisition leaders say that the most difficult part of recruitment is actually identifying the right candidates from such large applicant pools. As such, many of them view AI as the welcomed solution—a way to address and analyze large data sets quickly and efficiently, without having to review hundreds of resumes themselves, and move the hiring process along to get positions filled. It may seem simple to some, but it is anything but. According to an “AI in Hiring and Work 2024 Survey” reported in Top AI in Hiring Statistics in 2024, while 44.2% of HR leaders reported significant acceleration in the hiring process due to AI, they also reported complicated challenges, including hiring bias (40%) and data privacy concerns (37.2%). As always, these types of challenges, including the increase in legal action in such a highly regulated industry, must be given due consideration. For employers then, it’s a delicate balancing act. The lure of automation and efficiency must be weighed against the inherent risks of potential bias, ethical considerations, and legal compliance. With the stakes so high, and the drastic increase in federal, state, and local laws, regulations, and guidance that attempt to keep up with this ever-changing landscape, employers must use caution if they choose to use AI in their hiring processes. Throughout the country, employers are getting sued, and this will undoubtedly continue as more of them continue to be tempted by AI’s implicit promise of efficiency. Ready to work with a background screening provider who can deliver criminal searches in under 2 hours? Schedule time to Speak with Our Team and get started today. Regulatory Oversight Within the past couple of years, the use of AI in hiring faced increased scrutiny from U.S. government authorities. The Equal Employment Opportunity Commission (EEOC) held public hearings to examine the use of AI by employers in hiring decisions, as well as issued guidance regarding the use of software and other technologies in hiring and various employment decisions (“selection procedures”) and its compliance with federal civil rights laws and does not impede ADA requirements. The White House also released guidance in the Blueprint for an AI Bill of Rights regarding the use of AI in the hiring process and in other areas. Last spring, a joint statement from federal agencies, including the EEOC, highlighted the enforcement of laws and regulations regarding AI’s impact on civil rights, fair competition, and consumer protection. And by the fall of last year, these statements and declarations transformed into action as the EEOC began enforcing their position more stringently. In a clear demonstration of their “pledge to vigorously use [their] collective authorities to protect individuals’ rights regardless of whether legal violations occur through traditional means or advanced technologies,” the EEOC entered a $365,000 Joint Settlement Agreement with a tutoring company based on claims that the company used hiring software that automatically rejected applicants based on their age. AI oversight is not limited to the federal government, though. Illinois now requires employers that use AI-enabled analytics in interview videos to take certain steps to ensure transparency and unbiased decisions, while Maryland prohibits employers from using facial recognition software unless the applicant signs a waiver. Further, New York City recently passed the Automated Employment Decision Tools Law, requiring a “bias audit,” where employment decisions are to be screened and audited annually to ensure that the use of AI technology does not result in discrimination. Other states are currently considering similar legislation. How Employers can Navigate AI in Hiring As employers continue to engage in this balancing act, weighing the pros and cons of using AI in their hiring processes, all against the backdrop of increased scrutiny and regulation, they can take several measures to minimize their risks. This approach not only helps to enhance the efficiency and reliability of their screening processes but also fosters a fair and ethical hiring environment. Here are five key strategies to minimize risk using AI in hiring. 1. Transparency Employers should ensure transparency in any AI algorithms and processes used for recruiting and hiring by providing clear explanations to applicants about how AI is being utilized in decision-making. Other than this communication to the applicants, employers should also clearly update their policies and procedures to address the use of AI in their hiring practices. 2. Addressing Bias Employers may want to regularly assess their AI models for potential bias. In this way, they can implement measures to mitigate bias in algorithms and help avoid discriminatory outcomes. This may involve using diverse and representative datasets during model training. 3. Compliance with Regulations With the ever-changing regulatory landscape, employers must stay informed about relevant laws and regulations governing background screening and the use of AI in hiring. This includes compliance with data protection regulations, anti-discrimination laws, and other legal requirements at the federal, state, and local levels to avoid legal consequences. Employers should consult their legal counsel to confirm that their processes are in compliance with these laws, as well as the guidance from the EEOC, with the understanding that failure to do so could result in costly litigation. 4. Human Oversight and Decision-Making Employers don’t want to lose the human touch in any respect, and this is no exception. They can do this by incorporating consistent human oversight in the recruiting and hiring process. While AI in hiring can automate certain tasks, human judgment is crucial for contextual understanding and making final decisions, particularly in processes that specifically deal with other individuals. This also helps to balance the limitations and potential biases of AI. 5. Regular Audits and Monitoring Referencing the New York City law as a guide, regardless of where employers are located, may be a good option to consider. Conducting regular audits of AI systems used in the recruiting and hiring processes to identify and address potential issues will likely emerge as a best practice throughout the country. Employers can implement ongoing monitoring processes to ensure the continued effectiveness, fairness, and accuracy of AI models. As background screening vendors, we neither use AI in our background screening processes nor recommend that employers do so. Working with Orange Tree, employers can rest assured knowing that they can lean on us as their partner in compliance and that their background checks will be conducted in the right way. Why Orange Tree? Orange Tree Employment Screening helps companies win their race to fill open positions by providing fast and easy background check and drug testing services. We are committed to helping our clients stay updated with compliance, such as mitigate risk and avoid legal exposure. We forge long-term partnerships with our clients by offering a full range of technology-led screening solutions predicated on best practice and legally defensible screening programs. To get started with a background screening program tailored to your needs, you can schedule time to speak with our team. This material is not legal advice and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The content is intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have.

With a new piece of legislation, the state of New York recently added itself to the growing list of...

With a new piece of legislation, the state of New York recently added itself to the growing list of states striving to give those with criminal histories a fresh start. There is little doubt that the intent behind Clean Slate Acts is commendable. However, many employers question how they will know who they’re hiring considering these and other laws restricting the information available to them. Employers are justifiably concerned about the potentially devastating consequences of hiring the wrong person, including negligent hiring claims and decreased workplace safety. Before diving into New York’s specific legislation, it’s important to have a basic understanding of Clean Slate Acts and their implications on employers. Ready to work with a background screening provider who can help you navigate through Clean Slate laws? Schedule time to Speak with Our Team and get started today. What are Clean Slate Acts? Clean Slate Acts are legislative measures to expunge or seal certain criminal records. As a part of criminal justice reform, they strive to foster a more equitable system by acknowledging the importance of giving people a second chance to rebuild their lives without prolonged consequences of their past behavior. The laws are intended to offer individuals a fresh start after completing their sentences based on the premise that past convictions may hinder reintegration into society by limiting employment and housing opportunities. Typically, these laws automate the clearing of records for specific low-level offenses, although some states require a petition to the court to do so. What are the Impacts of Clean Slate Acts on Employers? While many believe that Clean Slate Acts offer numerous benefits, they also can pose significant challenges for employers. One potential negative impact brought up by employers is the concern about workplace safety, especially for roles that require a high level of trust or involve handling sensitive information. Some employers worry about the lack of visibility into an applicant’s complete background, potentially compromising the safety and security of the workplace. Others may face difficulties assessing an individual’s suitability for specific roles, impacting their ability to make informed hiring decisions. Striking a balance between providing second chances and ensuring workplace safety remains a challenge for employers navigating Clean Slate Laws. What does New York’s Clean Slate Act do? Effective November 16, 2024, the conviction records of individuals convicted of certain state crimes will be sealed from public access once they have completed their sentences and maintained law-abiding behavior for a specified period of time. Specifically, convictions under the Clean Slate Act include: misdemeanors when at least three years have passed since the individual’s release from incarceration or the imposition of sentence (if there was no incarceration), and felonies when at least eight years have passed from the date the individual was last released from incarceration, as long as the individual: (i) does not have a criminal charge pending; and (ii) is not currently under the supervision of any probation or parole department. Convictions involving Class A felonies (where a maximum life sentence could be imposed) are not eligible for sealing in New York under the new law. What Other States’ Clean Slate Acts Became Effective in 2023? Clean Slate Acts to seal certain criminal records have become increasingly prevalent over the past several years. In 2023 alone, Clean Slate Acts in Arizona, Connecticut, Michigan, and Alaska all became effective. Just as with other laws impacting background checks, it’s important to note that each state’s law has its own nuances. For example, Arizona is upon petition only, while Connecticut and Michigan will automatically clear certain types of convictions. Still others, including Alaska, will focus on specific crimes, such as marijuana possession. As always, it’s imperative for employers to understand the laws in their own states and the states in which they do business to ensure they remain in compliance. As for New York, employers should review their hiring processes regarding an applicant’s criminal history and make any necessary adjustments prior to the November 16, 2024 effective date. Hire the Right People Faster with Orange Tree Orange Tree is an expert in background screening services, including being compliant with Clean Slate Laws. Schedule time to speak with our team to discuss a background screening program tailored to your company's unique needs.

In March 2020, E-Verify temporarily extended the deadline for contacting the U.S. Social Security...

In March 2020, E-Verify temporarily extended the deadline for contacting the U.S. Social Security Administration in response to tentative nonconfirmations of employee eligibility (TNCs). This decision was made because many SSA offices were closed to the public as a result of the COVID-19 pandemic. Last month, the SSA rescinded that temporary extension. Effective July 15, 2022, any employee who receives a TNC due to a mismatch with SSA records must contact the agency within eight federal workdays. Failure to respond within that timeframe may result in termination of employment. What is E-Verify? E-Verify is an online tool that employers can use to confirm that employees are eligible to work in the United States. The E-Verify system compares information that employees provide on Form 1-9, Employment Eligibility Verification, to records maintained by the U.S. Department of Homeland Security (DHS) and the U.S. Social Security Administration (SSA). The system that became E-Verify was established in 1996 with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). It launched in 1997 under the name Basic Pilot Program and was renamed E-Verify in 2007. E-Verify is administered by the SSA and the United States Citizenship and Immigration Services (USCIS), which is part of the DHS. Who Is Required to Use E-Verify? All employers in the United States are required to have a fully completed Form 1-9 for every employee who is hired to work in the U.S. However, use of the E-Verify system is optional in most cases. On the federal level, employers who have contracts or subcontracts that include the Federal Acquisition Regulation (FAR) E-Verify clause must enroll in the system. In some states, E-Verify use is mandatory for some or all employers. As of Jan. 1, 2021, the following 22 U.S. states have passed E-Verify legislation: Alabama Arizona Colorado Florida Georgia Idaho Indiana Louisiana Michigan Minnesota Mississippi Missouri Nebraska North Carolina Oklahoma Pennsylvania South Carolina Tennessee Texas Utah Virginia West Virginia E-Verify may also be used by employers in the District of Columbia, Puerto Rico, Guam, the U.S. Virgin Islands, and the Commonwealth of Northern Mariana Islands. How Does E-Verify Work? Once an employer has enrolled in E-Verify system, they can easily confirm the employment eligibility of each person they hire. Here’s a general overview of how the system works: The new employee completes Form I-9, as required by law. No later than the third federal workday after the employee begins working, the employer uses the information from their Form I-9 to create a case in E-Verify. If the employee has provided the employer with an approved form of photo identification, the employer can compare that photo with an image that is displayed by E-Verify. The E-Verify system compares the information from the Form I-9 with records that are maintained by DHS and the SSA. Once the employer has entered the information from the new employee’s Form I-9, E-Verify typically returns an initial result in a matter of seconds. How Are E-Verify Cases Resolved? Initially, E-Verify will respond with one of the following three results: Employment Authorized: This means that the information from the employee’s Form I-9 matches data that is on file with DHS and/or the SSA. This is considered a final case result, and it will cause the system to automatically close the case. Verification in Process: This result indicates that the employee’s information could not be immediately confirmed, so the case has been automatically referred to DHS. Once DHS has completed its review, it will issue one of three results: Employment Authorized, Tentative Nonconfirmation, or Case in Continuance. Typically, this is accomplished within 24 hours, but it may take up to three federal workdays. Tentative Nonconfirmation (TNC): A Tentative Nonconfirmation result indicates that the information from the employee’s Form I-9 did not match either SSA or DHS records. A TNC requires additional action by both the employer and the employee, which is explained in greater detail in the next section. Cases that do not initially result in Employment Authorized may lead to one of the following results: Case in Continuance: This means that the employee has contacted DHS or SSA, but the case has not yet been resolved. There is no standard timeframe for resolving a case that has been placed in continuance. Close Case and Resubmit: This result typically occurs when incorrect information has been submitted. When this result is issued, the employer will need to close the case, open a new case, and resubmit the required information. Final Nonconfirmation: This result may indicate that eligibility could not be verified even after the employee contacted DHS or the SSA as required. It may also be issued if the employee fails to contact DHS or the SSA within the eight-day timeframe. A result of Final Nonconfirmation authorizes termination of employment. Employment Authorized, Close Case and Resubmit, and Final Nonconfirmation are considered to be final results. Once one of these results has been issued, the employer will be notified regarding what steps, if any, they need to take. What Happens If a Tentative Nonconfirmation (TNC) Is Issued? As noted in the previous section, an initial result of Tentative Nonconfirmation (TNC) means that the submitted information is inconsistent with one or more of the records that are maintained by the SSA and DHS. When E-Verify issues a TNC, it will identify which agency’s records did not match the submitted information from the Form I-9. If records from both agencies were inconsistent with the employee’s data from the Form I-9, that will be indicated as well. This will be included in a Further Action Notice. Once the Further Action Notice has been generated, the employer and the employee both need to take certain steps. Employer Actions The first step the employer needs to take is to inform the employee that their E-Verify case resulted in a TNC. This must occur within 10 federal workdays. The employer must print out the TNC and the Further Action Notice and review this information with the employee in a private setting. If, during this review, the employer discovers that they submitted incorrect information when they opened the E-Verify case, they can indicate this in the Further Action Notice and then close the case. If the employer correctly submitted the information that the employee provided, the employer must ask the employee if they intend to take the necessary action to resolve the TNC. The employer must tell the employee that they have until the 10th federal workday following the issuance of the Further Action Notice to make their decision. The employer must have the employee sign and date the Further Action Notice, retain the original signed and dated notice, and provide the employee with a copy. Employee Actions Once the employee has reviewed the Further Action Notice with their employer, they need to take the following steps: They must let the employer know if the information that was submitted to E-Verify is accurate. They must decide if they intend to take the necessary action to resolve the TNC. They must inform the employer of their decision within 10 federal workdays after the Further Action Notice was issued. They must sign and date the Further Action Notice. If the employee decides to attempt to resolve the TNC, they have eight federal workdays to contact the appropriate agency (SSA or DHS). If the employee opts not to attempt to resolve the TNC, or if they fail to inform their employer of their decision within the required timeframe, the employer can close their case and terminate their employment. What TNC Response Timeframes Are Now in Effect? The eight-day TNC response requirement applies to all E-Verify cases that were referred to the SSA on or after July 15, 2022. For cases with TNCs that were issued prior to July 15, 2022, the following extended timeframes remain in effect: If an employee’s case was referred to the SSA from March 2 to Dec. 31, 2020, the employee should contact the SSA between Oct. 1 and Dec. 31, 2022. If an employee’s case was referred to the SSA in 2021, the employee should contact the SSA between Jan. 1 and March 31, 2023. If an employee’s case was referred to the SSA between Jan. 1 and July 14, 2022, the employee should contact the SSA between April 1 to June 30, 2023. Please note that the information in this post is a summary of guidance that has been posted on the E-Verify website or provided by the U.S. Social Security Administration, U.S. Department of Homeland Security, and U.S. Citizenship and Immigration Services. For additional details about E-Verify, or to confirm that the procedures and deadlines described in this post have not been changed, please contact these sources directly. Stay Compliant & Informed with Orange Tree When you’re focused on running a business, it can be difficult to ensure that you are up to date on changing federal and state eligibility verification requirements. At Orange Tree, we understand the challenges that this can present, and we’re here to help. Our ability to closely monitor all relevant updates is just one of several ways that we can eliminate distractions from your workday, so you can dedicate your full attention to your employees and your organization. To learn more about the many benefits of partnering with Orange Tree, schedule a free introductory consultation today. We recommend employers review and discuss with your legal counsel your organization’s policies and procedures to ensure continued compliance with the changing laws and regulations.

The President signed the National Defense Authorization Act for Fiscal Year 2020. This new...

The President signed the National Defense Authorization Act for Fiscal Year 2020. This new provision, which went into effect on December 20, 2021, prohibits federal contractors from requesting "the disclosure of criminal history record information regarding an applicant for a position related to work under "a federal contract before the contractor extends a conditional offer to the applicant. What does this new Fair Chance Act mean? Known as the "Fair Chance to Compete for Jobs Act of 2019" or "Fair Chance Act (FCA)" it prohibits federal contractors from asking applicants seeking work under federal contracts about their criminal histories until after they have been made a conditional job offer. Per Sec. 9202. Limitations on requests for criminal history information of the act: "(a) Inquires prior to conditional offer. - Except as provided in subsections (b) and (c), an employee of an agency may not request, in oral or written form (including through the Declaration for Federal Employment (Office of Personnel Management Optional Form 306) or any similar successor form, the USAJOBS internet website, or any other electronic means) that an applicant for an appointment to a position in the civil service disclose criminal history record information regarding the applicant before the appointing authority extends a conditional offer to the applicant." This new provision is intended to reduce the degree of discrimination against job applicants with a prior record by allowing them an opportunity to be considered for employment, even if they have a past conviction, or arrest that did not result in a conviction. Who this Act covers The Act covers all executive agencies including cabinet agencies, the U.S. Postal Service, the legislative branch, the judicial branch of the federal government, and private-sector companies working on federal contracts. Who is exempt from the Fair Chance Act? The prohibition does not apply to three types of positions: Positions related to law enforcement and national security duties. Positions that require access to classified information. Positions where the consideration of criminal history information prior to a conditional offer is required by law. Penalties for violation of the Fair Chance Act If a civilian or defense agency contractor does not comply, there are penalties for first and subsequent violations. Per the FCA, the Director may take such adverse action with respect to a covered employee who violates paragraph (2) as would be appropriate under section 9204 of if the violation had been committed by an employee of an agency. The penalties for not complying are as follows: For the first violation: the employee will receive a written warning which includes a description of the violation and the additional penalties that may apply for subsequent violations; and file such warning in the employee’s official personnel record file. For a second violation: suspension of the employee for a period of not more than 7 days. For a third violation: suspension of the employee for a period of more than 7 days. For a fourth violation: suspension of the employee for a period of more than 7 days, and a civil penalty against the employee in an amount that is not more than $250. For a fifth violation: suspension of the employee for a period of more than 7 days and a civil penalty against the employee in an amount that is not more than $500. For any subsequent violations: suspension of the employee for a period of more than 7 days and a civil penalty against the employee in an amount that is not more than $1,000. Federal contractors should review their hiring policies and applications to ensure they are in compliance with both federal law and local regulations. They should also keep in mind the existing "Ban the Box" laws that have been passed in 37 states and more than 150 cities and counties that may have additional requirements or restrictions. Get expert tools to help you respond to a shifting law landscape Orange Tree can help you stay updated on the latest laws and regulations regarding Ban-the-Box, use of credit legislation, EEOC guidance, and more. We provide our clients: Proactive communication of relevant industry and legal updates/and requirements. Direct access to our compliance team when you need it the most. 50 state analysis of legislation and necessary legal procedures. Monitoring of current legal updates and trends. Provide regular compliance updates through our newsletter, blog, and webinars. Ability to dispute and re-investigate results at any time. Transparency in our practices to our clients and candidates. Schedule a call to learn how we can help ensure your screening process is compliant with the current and changing Fair Chance Act and Ban-the-Box laws. We recommend employers review and discuss with your legal counsel your organization’s policies and procedures to ensure continued compliance with the changing laws and regulations.

On December 1, 2021, a new online portal launched in Columbus, Ohio. This portal will help assist...

On December 1, 2021, a new online portal launched in Columbus, Ohio. This portal will help assist ex-offenders in sealing their criminal records to aid in their employment searches. The new program is much more accessible for ex-offenders, and the process of sealing a criminal record is much easier and faster. Columbus introduced the new website in hopes of getting residents that may have been prevented by their criminal history to have more employment and housing opportunities in their city. What Is This New Portal? Columbus utilizes a portal called the "Opportunity Port" for ex-offenders to access and request a seal of their record. According to The Columbus Dispatch, the platform for these requests was funded by a $500,000 grant from the Alliance for the American Dream, which is a "competitive grant program" founded by Schmidt Futures. The portal provides applicants with legal experts to help guide them through this process. The portal could potentially help hundreds of thousands of people in this district. Councilmember Shayla Favor stated in a press conference that "the stigma of a criminal record can be a significant and long-lasting barrier to obtaining basic necessities and safe and affordable housing," continuingly stating that "the program could help lift up more Columbus residents, especially people of color, into the middle class and help Columbus rebuild our skilled workforce and create real pathways out of poverty.” In an article from the Columbus Dispatch, Ohio State University Moritz College of Law professor Doug Berman said "Twenty-five percent of all jobs are out of reach legally, formally, for those with a criminal conviction. We're hurting community development in ways that go outside individual harms." What Is This New Process? The new process is less rigorous than the current process of sealing a court record. The current process can be costly and involves setting up an in-person meeting with an attorney, filling out paperwork, reviewing the application for eligibility and mistakes, forwarding it to prosecutors for review, and finally going before a judge for a final decision. This portal will make it much easier for ex-offenders to seal their records at no cost. 1.) Creating a profile This involves filling out personal information and taking a survey. 2.) Connecting with an attorney Once the survey is complete, "Opportunity Port" legal partners will help offenders complete a formal record sealing application. 3.) Attending a hiring If the offender's application is eligible for a record seal, it will be reviewed by a judge. 4.) Sealing the record If the judge approves the application, the court will remove offenses from public view. Convictions Not Eligible To Be Sealed Under Ohio law, convictions that are not eligible to be sealed include: First-or- second-degree felonies. Sex offenses. Operating a motor vehicle under the influence of alcohol or drugs (OVI). Crimes of violence. Crimes involving child victims. Other State's Criminal Record Sealing Programs Minnesota has launched a similar statewide program, where low-level offenders can access an online portal and fill out an application to have their records sealed at no cost. Automatic cleaning of records is another law that automatically clears a person's criminal record depending on the charges. This process eliminates the need to petition and is often free of charge. According to the National Conference of State Legislatures (NCSL), 20 states have at least one statutory automatic record clearing provision. However, Michigan, New Jersey, Pennsylvania, and Utah have enacted legislation that automates the automatic record clearing process, also known as "clean slate laws." Offenders having access to these programs is growing throughout states and is considered a part of the effort in giving offenders second chances and opportunities to succeed. How These Portals Can Be Helpful For Recruiters It is important for recruiters to understand these options are available to their candidates. Recruiters can share with staffing agencies or directly to the applicants how to utilize these portals and, depending on a person's situation, alter their standing when it comes to a job offer. Programs that offer the sealing of a criminal record can help an applicant with minor charges capitalize on certain opportunities, so recruiters sharing tools like this can help their candidates and agencies. How Orange Tree Can Help Orange Tree is committed to providing useful, up to the minute information regarding anything that can affect your recruiting process. It is our intention to always be your teammate and trusted partner. Schedule a call to learn more about how Orange Tree help improve your hiring process and keep you updated on all the compliance requirements related to your screening process. We recommend employers review and discuss with your legal counsel your organization’s policies and procedures to ensure continued compliance with the changing laws and regulations.

In January 2021, the New York City Council amended the Fair Chance Act (FCA) that prohibits...

In January 2021, the New York City Council amended the Fair Chance Act (FCA) that prohibits employers in New York City from inquiring into job applicants' criminal history until after a conditional job offer was made. The New York City Fair Chance Act, or NYCFCA, went into effect on July 29, 2021, and expanded protection for individuals with criminal records. The amendments in this law also require background checks to be conducted in a two-step process to provide 'complete protection' for non-convictions and add specific Fair Credit Act factors that employers must review for pending criminal charges. What employers need to know about the guidance: Employers should conduct two separate screenings: everything other than criminal checks and driving (like education, employment, professional licenses, drug tests and government list checks), and then criminal and driving checks. "Everything other than criminal and driving" should be done before a conditional offer of employment. Two-Step Background Check Requirement Under NYCFCA, employers can only request and review criminal history information after favorably evaluating the candidate's non-criminal information. Employers who request background checks on applicants should first receive non-criminal information. Evaluate it, and then receive and evaluate the criminal information. 1. Before a Conditional Offer: Complete everything other than criminal and driving checks. That may include employment and education verification, sanctions, drug screens and other checks. Remove even neutral statements about criminal history in applications, job postings, etc. prior to a conditional offer of employment. Consider removing criminal history questions for applicants in NYC or revising the timing or substance of those questions if the questions are posed prior to all other information being considered and prior to the “everything other than criminal and driving” check. Ensure that authorizations and disclosures made related to the “everything other than criminal and driving” checks do not mention criminal background checks. Consider a separate set of disclosures and authorizations for the post offer criminal and driving check. 2. The Conditional Offer of Employment: Can only request and review criminal history information after favorably evaluating the candidate’s non-criminal information. Those who request background checks on applicants should first receive the non-criminal information, evaluate it, and then receive and evaluate the criminal information. The Guidance allows for MVRs to be treated similar to criminal history and be conducted as the last step in the process. 3. After the Conditional Offer: Can run criminal and driving checks. May not consider “Non-convictions” (although not pending cases). A conditional offer is defined as an offer, promotion, or transfer that can be revoked based on: The results of a criminal background check. The results of a medical examination as permitted by the Americans with Disabilities Act (ADA). Other information an employer could not have reasonably known in advance that based on the information, they would not have made the offer regardless the result of the criminal background check. Employers may not consider non-convictions Per the Guidance, a non-conviction is: "A criminal action that has been adjourned in contemplation of dismissal pursuant to sections 170.55, 170.56, 210.46, 210.47, or 215.10 of the New York Criminal Procedure Law ("CPL") unless the order to adjourn in contemplation of dismissal is revoked and the case is restored to the calendar for further prosecution, or a criminal action that is not currently pending and was concluded in one of the following ways: Termination in favor of the individual, as defined by CPL § 160.50, even if not sealed. Adjudication as a youthful offender, as defined by CPL § 720.35, even if not sealed or marked confidential. Conviction of a violation, as defined in Penal Law § 10.00, even if not sealed; Conviction of a non-criminal offense, as defined by a law of another state, even if not sealed. Or Convictions that have been sealed under CPL § 160.58 or § 160.59. "Non-conviction" includes a disposition of a criminal matter under federal law or the law of another state that results in a status comparable to a "non-conviction" under New York law as defined here." Examples of non-convictions include: Instances when the police decided not to charge a person following their arrest. Cases in which the prosecutor declined to prosecute the person following their arrest. Cases that were adjourned in contemplation of dismissal (unless the order to adjourn in contemplation of dismissal is revoked and the case is restored to the calendar for further prosecution). Cases in which all charges were dismissed. Cases that resulted in an acquittal on all charges. Cases in which the verdict was set aside or the judgment was vacated by the court and no new trial was ordered, nor is any appeal by the prosecution pending. Cases in which the person was adjudicated as a youthful offender. Cases that resolved in a conviction for a violation, even if not sealed. Evaluating the Applicant Using the Fair Chance Analysis: The Commission has provided and updated version of the Fair Chance Analysis forms for employers to complete if they are considering taking adverse action based on a criminal record (both sets of factors are identified on the form). Employers now have different sets of factors that must be considered depending on whether the criminal record being considered is a conviction or a pending case. Withdrawing an Offer Pursuant to the Fair Chance Process: Increase the length of time between sending the pre-adverse action letter (including the Fair Chance Analysis form) and the final adverse action letter – the new guidance requires 5 business days from the time the communication is received by the applicant. A Consumer Reporting Agency cannot advise an employer to approve or deny an applicant based on a list of specified conviction histories that the employer wishes to categorically exclude. Guidance regarding current employees Current employees are also protected from discipline or termination base on conviction history or pending case information except by conducting a Fair Chance Analysis that is similar (but not the same) as the pre-hire process. How Orange Tree can help Orange Tree is helping clients who have positions that fall within the jurisdiction of the New York City Human Rights Law (NYCHRL) by working with them to make adjustments to their background screening process, including: Creating location-specific service packages so that the "everything other than criminal and driving" checks can be ordered first and the "criminal and driving" checks can be ordered later. Configuring two separate sets of disclosures and authorizations and to not ask the admitted criminal history question (or not ask the question until the "criminal and driving" checks are ordered) Increasing the length of time between sending out the pre-adverse and the final adverse action letter to at least 7 business days. Schedule a call to learn how Orange Tree can help ensure your screening process is compliant with the current and changing laws and regulations We recommend employers review and discuss with your legal counsel your organization’s policies and procedures to ensure continued compliance with the changing laws and regulations.

Record Expungement Designed to Enhance Employment and Eliminate Recidivism Act (REDEEMER Act) was...

Record Expungement Designed to Enhance Employment and Eliminate Recidivism Act (REDEEMER Act) was passed and signed into law by Alabama Governor Kay Ivey. Effective: July 1, 2021 Key Takeaways: According to the new bill, a misdemeanor conviction can now be expunged where the following criteria are met: All probation or parole requirements have been completed. Including payment of all fines, costs, restitution, and other court-ordered amounts. This must be verifiable with the applicable court or agency. Three years have passed from the date of conviction. The person was not operating a commercial vehicle at the time and convicted of any of the offenses enumerated in 49 C.F.R. § 383.51. The conviction is not a violent offense, provided in Section 12-25-32. The conviction is not a sex offense, as provided in Section 15-20A-5. The conviction is not an offense involving moral turpitude, as provided in Section 17-3-30.1. The conviction is not a serious traffic offense, as provided in Article 9 of Chapter 5A of Title 32. Felony arrests and convictions The old law regarding felony charges that did not result in a conviction stays essentially the same. Under the new Alabama REDEEMER law, a person who has been charged, but not convicted of a felony may file a petition to expunge the record under the following circumstances: The charge was dismissed with prejudice and more than 90 days have passed. The charge has been no billed by a grand jury and more than 90 days have passed. The person has been found not guilty of the charge and more than 90 days have passed. The charge has been nolle prossed without conditions, more than 90 days have passed, and the charge or charges have not been refiled. The indictment has been quashed and the statute of limitations for refiling the charge or charges has expired or the prosecuting agency confirms that the charge or charges will not be refiled. When the charge was dismissed after successful completion of a drug court program, mental health court program, diversion program, veteran’s court, or any court-approved deferred prosecution program and the program was completed at least one year prior to filing. When the charge was dismissed without prejudice more than five years ago, has not been refiled, and the person has not been convicted of any other felony or misdemeanor crime, any violation, or any traffic violation, excluding minor traffic violations, during the previous five years. When the person proves by a preponderance of the evidence that the person is a victim of human trafficking, that the person committed the misdemeanor criminal offense, violation, traffic violation, or municipal ordinance violation during the period the person was being trafficked, and that the person would not have committed the offense or violation but for being trafficked. Felony Convictions can now be expunged under certain circumstances Where the person was convicted of a felony charge, they can file a petition for expungement where ALL of the following conditions are met: The person has been granted a certificate of pardon with restoration of civil and political rights for the conviction from the Board of Pardons and Paroles. All civil and political rights that were forfeited as a result of the conviction have been restored. One hundred eighty days have passed from the date of the issuance of the certification of pardon. The conviction is not for a violent offense as defined in 12-25-32. The conviction is not a sex offense, as defined in Section 15-20A-5. The conviction is not an offense involving moral turpitude, as provided in Section 17-3-30.1. The conviction is not a serious traffic offense, as provided in Article 9 of Chapter 5A of Title 32. Availability of records after expungement Under the new law, even though the records are expunged, the records will still be available to the following: A criminal justice agency A district attorney, or a prosecuting authority for criminal investigation purposes A utility and its agents and affiliates The Department of Human Resources for the purpose of investigation or assessment in order to protect children or vulnerable adults Entities or services providing information to banking. insurance, and other financial institutions as required for various requirements as provided in state and federal law The Court, or officers of the Court for use in any civil matters related to the criminal charges expunged or seeking to be expunged regardless of the outcome of the petitioned expungement. Get expert tools to help you respond to a shifting law landscape Orange Tree can help you stay updated on the latest laws and regulations regarding the Alabama REDEEMER Act, Ban-the-Box, use of credit legislation, EEOC guidance, and more. We provide our clients: Proactive communication of relevant industry and legal updates/and requirements. Direct access to our compliance team when you need it the most. 50 state analysis of legislation and necessary legal procedures. Monitoring of current legal updates and trends. Provide regular compliance updates through our newsletter, blog, and webinars. Ability to dispute and re-investigate results at any time. Transparency in our practices to our clients and candidates. Schedule a call to learn how Orange Tree can help you today.

Did you know that anywhere from 70-100 million people have a criminal record in the United States?...

Did you know that anywhere from 70-100 million people have a criminal record in the United States? Even after they complete a sentence, they can find it extremely difficult to obtain employment. Fair chance hiring laws are used to change that. But complying with them can be tricky for businesses because there are many different laws and stipulations. More than 150 cities and counties and 36 states and the federal government have fair chance laws. The bulk of the laws delay when a prospective employer can ask for criminal history for government hiring. In 14 states, the law has been extended to private companies too. Those laws are also known as “ban the box” laws, which are based on the box you check on an employment application if you have criminal records. The theory behind the laws is that people with criminal records can improve their chances of getting hired. They can show their qualifications without having the negative of a criminal history hurting their chances. Here are some FAQs about fair hiring laws and how they impact employers and job candidates. What is a fair chance hiring law? The central part of fair chance hiring law is that you can’t ask a candidate about a criminal history or convictions until after you make a conditional offer. But there are other provisions. Ban the box laws also integrate the United States Equal Employment Opportunity Commission arrest and conviction record guidelines. Employers are mandated to consider how much time has passed since the offense. Employers must consider if the crime was related to the job and what types of rehabilitation the applicant completed. What is the Fair Chance Act? The Fair Chance Act is a federal law known as the Fair Chance to Compete for Jobs Act of 2019. It prohibits federal employers and private employers with federal contracts from asking about criminal history or convictions until a conditional offer is made. It officially takes effect in December of 2021. Do fair chance hiring laws ban background checks? No, they do not. Employers are not prevented from seeking an applicant’s criminal history. The laws only delay when the employer seeks out criminal history. Do fair chance laws force you to hire the applicant? Fair chance laws do not require employers to hire applicants. If you own a business, you can hire whatever candidate you feel is best for your position. Are there any limitations on fair chance hiring laws? Yes, depending on what the local or state law is in your area. Some laws allow for criminal history checks only if hiring for a sensitive position. Background checks can also be limited to recent convictions. Laws in some areas exempt businesses with a certain number of employees. Others allow firms to conduct the background check if the candidate is being considered for the job, while a different mandate for some requires a conditional offer of employment to be made before the criminal check. If a conviction is on a record, some laws require companies not to use that fact on its own in the hiring process. The laws make the employer consider the nature of the offense and compare it to the job requirements. Other requirements can also come into play, like people who committed crimes against a child cannot work in childcare or school settings. There is also a list of healthcare professionals who are banned for convictions. Have the laws helped people? Yes, fair hiring laws have helped communities in a few different ways. First, people with court records have found it easier to get jobs. A 2016 study found that candidates with criminal records were hired, not just called back on the applications. Second, the policies have created more tax revenue and safer communities. What are the penalties for ban the box laws? If you fail to comply with a law, you could be subject to civil penalties. Those penalties can range from hundreds to thousands of dollars for each violation. Violations can also trigger unfair-hiring lawsuits. It’s best to work with an expert in background checks like Orange Tree Screening to ensure the law in your local area is followed. The laws also require high standards of accuracy and transparency for background checks and protect against any arbitrary treatment. What disclosures must you make for fair chance hiring? Employers must tell the candidate if the decision was at least partly based on the background check of criminal records. The employer has to write the candidate a letter and say what exactly is an issue in the applicant’s history. If anything is inaccurate, the candidate has the right to correct the mistake. The law also allows the candidate to address their criminal history to the employer. Some laws also require the employer to use forms that notify the candidate of what was found on the criminal background check and explain the process. Don’t run afoul of fair chance laws With so many federal, state, and municipal fair chance hiring laws, you must work with an experienced background check firm to ensure that you are fully compliant with your screening process. Orange Tree can help you comply with fair chance hiring laws and perform fast criminal background checks so you can make hiring decisions quickly. Schedule a call to learn how Orange Tree can help your company comply with fair chance laws!

There are now 36 states and over 150 cities with ban-the-box laws in some form or another. This...

There are now 36 states and over 150 cities with ban-the-box laws in some form or another. This means it is illegal to ask job candidates about convictions on applications before you have made them an offer of employment. Ban-the-box does not forbid employers from running background checks, but some states require a delay in obtaining one until after the first job interview or after a conditional offer of employment is made. Several states also have laws that impose restrictions on an employer's ability to use credit history in making employment decisions. Which states “Ban the Box”? The following provides an overview of states that have adopted statewide ban-the-box laws or policies for public-sector employers (within government agencies) and/or private employers and the law's details. The laws vary significantly from state to state, so it's critical to understand whether the law may affect your organization and how. Arizona EXECUTIVE ORDER (2017) (APPLIES TO EMPLOYMENT IN THE EXECUTIVE BRANCH): prohibits certain state agencies from inquiring into an applicant’s conviction or arrest history until after submission of a job application and an initial interview. California Assembly Bill (2017) (Applies to private and public employers with 5+ employees): requires employers to delay any conviction background check as well as any questions about or consideration of a job applicant’s conviction history until after the employer extends a conditional offer of employment to the applicant. Colorado HOUSE BILL 1025 (2019) (APPLIES TO PRIVATE EMPLOYMENT): bars employers from stating in a job advertisement or on an application form that a person with a record may not apply as well as from inquiring into or requiring disclosure of an applicant’s record on an initial application. An employer may, however, obtain a “publicly available criminal background report” at any time. HOUSE BILL 1263 (2012) (APPLIES TO STATE EMPLOYMENT): prohibits state agencies and licensing agencies from performing a background check until the agency determines that the applicant is a finalist for the position or the applicant receives a conditional offer. CONNECTICUT HOUSE BILL (2016) (APPLIES TO PUBLIC AND PRIVATE EMPLOYMENT): prohibits employers from inquiring about arrest and conviction history information on an initial employment application. Employers may not inquire about any erased records at any time. Prior convictions for which the prospective employee received a provisional pardon or certificate of rehabilitation cannot be the sole basis for discharge. DELAWARE HOUSE BILL(2014) (APPLIES TO PUBLIC EMPLOYMENT): This bill applies to the state, its agencies, and political subdivisions, such as cities and counties. It prohibits public employers from inquiring into or considering criminal or credit histories of an applicant until after the completion of the first interview. GEORGIA EXECUTIVE ORDER (2015) (APPLIES TO STATE EMPLOYMENT): removed questions regarding criminal history from all applications for state employment. Under the executive order, inquiries into an applicant’s criminal record are postponed until after “the initial stage of the state employment application process.” In addition, the order prohibits the use of an applicant’s criminal record as an automatic bar to employment, and provides applicants an opportunity to dispute the accuracy and relevance of any disqualifying conviction relied upon for rejection. Hawaii HOUSE BILL (1998) (APPLIES TO PUBLIC AND PRIVATE EMPLOYMENT): prohibits inquiring into an applicant’s conviction history until after a conditional offer of employment has been made. Employers may only consider an employee’s conviction record within the most recent ten years, excluding periods of incarceration. The offer may be withdrawn if the applicant’s conviction bears a “rational relationship” to the duties and responsibilities of the position sought. Illinois HOUSE BILL (2014) (APPLIES TO PRIVATE EMPLOYERS WITH 15+ EMPLOYEES AND STATE EMPLOYERS): Employers may not inquire into an applicant’s criminal record until the applicant has been selected for an interview by the employer or until after a conditional offer of employment is made to the applicant. INDIANA EXECUTIVE ORDER (2017) (APPLIES TO STATE EMPLOYMENT IN THE EXECUTIVE BRANCH): requires the removal of “questions regarding convictions and criminal history” on job applications for positions within the state’s executive branch. ” KANSAS EXECUTIVE ORDER (2018) (APPLIES TO STATE EMPLOYMENT IN EXECUTIVE BRANCH): prohibits asking applicants about their conviction or arrest records “during the initial stage of a state employment application.” Additionally, conviction records can not automatically disqualify an applicant from being interviewed. KENTUCKY EXECUTIVE ORDER (2017) (APPLIES TO STATE EMPLOYMENT IN EXECUTIVE BRANCH): removed “questions regarding convictions and criminal history” from applications for jobs within the state executive branch until the applicant is offered an interview. LOUISIANA HOUSE BILL 266 (2016) (APPLIES TO SOME STATE EMPLOYMENT): prohibits many state government employers from inquiring into an applicant’s criminal history until after an interview or a conditional offer of employment is extended. The law applies to only “unclassified” state positions and further exempts law enforcement, corrections, and other positions for which the law requires a background check. MAINE LEGISLATIVE DOCUMENT 170 (2019) (APPLIES TO STATE EMPLOYMENT): prohibits questions about criminal history on an application form for a position in state government. The law does not apply to employment with a political subdivision of the state (such as municipalities or counties), to positions in school administration, or to state government positions for which an applicant may be ineligible because of his or her record and the nature of the position. MARYLAND SENATE BILL 839/HOUSE BILL 994 (2020) (APPLIES TO PRIVATE EMPLOYMENT): prohibit employers with at least 15 full-time employees from requiring any job applicant to disclose a criminal record before an in-person interview. The law makes exceptions for employers providing services to minors or vulnerable adults and does not prohibit from making record-related inquiries as required or expressly authorized by federal or state law. SENATE BILL 4 (2013) (APPLIES TO STATE EMPLOYMENT): prohibits state employers from inquiring into the criminal history of an applicant for employment until the applicant has been provided an opportunity for an interview. Exceptions to the law include positions within the Department of Corrections, the Office of the Sheriff for any county, or where a background check is required by law. MASSACHUSETTS SENATE BILL 2583 (2010) (APPLIES TO PUBLIC AND PRIVATE EMPLOYMENT): prohibits employers from asking on their employment application whether an applicant has been convicted or any crime unless applicable to the position they are applying for. Effective May 4, 2012, the law requires that applicants receive a copy of their background report prior to being asked about their criminal history and if an adverse decision is made based on the background report. MICHIGAN EXECUTIVE ORDER (2018) (APPLIES TO STATE EMPLOYMENT): prohibits state departments and agencies from including questions about conviction or arrest history on job applications or job postings. Positions that are prohibited by federal or state law from hiring a candidate with a criminal history are exempted. MINNESOTA SENATE BILL 523 (2009, 2013) (APPLIES TO PUBLIC AND PRIVATE EMPLOYMENT): employers may not inquire into an applicant’s criminal history until after the applicant has been selected for an interview or before a conditional offer of employment. MISSOURI EXECUTIVE ORDER 16-04 (2016) (APPLIES TO PUBLIC EMPLOYMENT): requires removal of questions relating to an individual’s criminal history from initial employment applications. The order exempts applications for positions for which people with convictions would be automatically ineligible. NEBRASKA LEGISLATIVE BILL 907 (2014) (APPLIES TO PUBLIC EMPLOYMENT): prohibited from inquiring into a job applicant’s criminal history until after the employer has determined the applicant meets the minimum job requirements. NEVADA ASSEMBLY BILL 384 (2017) (APPLIES TO PUBLIC EMPLOYMENT): employers may not consider an applicant’s criminal history until the final in-person interview or a conditional offer of employment is extended. NEW HAMPSHIRE HOUSE BILL 253 (2020) (APPLIES TO STATE EMPLOYMENT): prohibits asking about arrest or conviction history on job applications, instead requiring them to wait until an interview to make such inquiries. NEW JERSEY ASSEMBLY HOUSE BILL 1999 AND SENATE BILL 1484 (2014) (APPLIES TO PUBLIC AND PRIVATE EMPLOYMENT): employers cannot inquire into a candidate’s criminal history until the first interview and may not consider expunged or pardoned convictions when making an employment decision. NEW MEXICO SENATE BILL 254 (2010) (APPLIES TO PUBLIC EMPLOYMENT): prohibits inquiring into conviction history on an employment application until the applicant is "selected as a finalist". The law further prohibits, for employment and licensing, the use of records of arrest not leading to conviction and misdemeanor convictions not involving moral turpitude. SENATE BILL 96 (2019) (APPLIES TO PRIVATE EMPLOYMENT): prohibits inquiring into an applicant’s history of arrest or conviction on any written or electronic employment application. An employer may consider an applicant’s conviction history “after review of the applicant’s application and upon discussion of employment with the applicant.” NEW YORK (2015) (APPLIES TO STATE EMPLOYMENT): prohibits employers from asking about, or acting adversely in response to, arrests or charges that did not result in conviction and are not currently pending. It also makes it an “unlawful discriminatory practice” for any employer or licensing authority to deny employment or licensure, or take other adverse action, based on conviction history unless either “there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual” or the employment or licensure “would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” When considering an applicant with a record, the public agency or private employer must consider several factors, including the job- or occupation-relatedness of the offense, how long ago the offense occurred and the individual’s age at that time, as well as any information produced by the individual related to rehabilitation and good conduct. NORTH DAKOTA HOUSE BILL 1282 (2019) (APPLIES TO PUBLIC EMPLOYMENT): prohibits public employer from inquiring about or considering a job applicant’s criminal history until that applicant has been “selected for an interview.” OHIO ADMINISTRATIVE POLICY HR-29 AND HOUSE BILL 56 (2015) (APPLIES TO PUBLIC EMPLOYMENT): removed questions about conviction and arrest history from the initial application for state employment and required hiring decision-maker weigh factors similar to those found in the EEOC guidance. HB 56 prohibits all public employers, including cities and counties, from including any questions about criminal records on initial applications for employment. The Ohio Fair Hiring Act also prohibits a felony conviction from being used against certain classes of public employees unless the conviction occurs while that person is employed in the civil service. OKLAHOMA (2016) EXECUTIVE ORDER 2016-03 (APPLIES TO STATE EMPLOYMENT): required removal of questions regarding convictions and criminal history from job applications. It doesn’t apply to “sensitive government positions” and positions where a felony conviction would automatically disqualify an applicant. OREGON HOUSE BILL 3025 (2015) (APPLIES TO PUBLIC AND PRIVATE EMPLOYMENT): prohibits an employer from inquiring about an applicant’s prior criminal convictions until the initial interview with the applicant. Exceptions include positions where an applicant with a conviction history would be automatically disqualified by law, and for law enforcement, criminal justice positions, and volunteers. PENNSYLVANIA ADMINISTRATIVE POLICY HR-TM001 (2017) (APPLIES TO STATE EMPLOYMENT): removed questions about conviction history from job applications and prohibits consideration of certain record information, including arrests, expunged convictions, and convictions not related to an applicant’s job suitability. Hiring entities are also required to consider the public’s interest in employing individuals with records when making hiring decisions. Existing Pennsylvania law (18 Pa. Cons. Stat. § 9125) also prohibits public and private employers from considering felony and misdemeanor convictions beyond the “extent to which they relate to the applicant’s suitability for employment in the position for which he has applied.” That statute also requires employers to notify an applicant in writing if he or she is not hired wholly or partly because of his or her criminal history. The policy includes exceptions for security personnel, law enforcement, and those working with vulnerable populations. RHODE ISLAND HOUSE BILL 5507 (2013) (APPLIES TO PUBLIC AND PRIVATE EMPLOYMENT): prohibits an employer from inquiring about an applicant's prior criminal convictions until the first interview with the applicant. An employer may inquire about the applicant's criminal convictions during the first interview. The law includes exceptions for positions from which an applicant with a conviction history would be automatically disqualified by law. TENNESSEE SENATE BILL 2440 (2016) (APPLIES TO STATE EMPLOYMENT): prohibits state agencies from inquiring about criminal records on any initial application form. Employers must consider the specific job duties, relationship of the offense to the job duties, time elapsed since the offense, age of the applicant at the time of the offense, frequency and seriousness of each offense, any submitted evidence of rehabilitation, and any public policy consideration relating to the benefits for employment for applicants with past convictions. UTAH HOUSE BILL 156 (2017) (APPLIES TO PUBLIC EMPLOYMENT): prohibits requiring an applicant to disclose conviction history before an initial interview or, before a conditional job offer (if there is no interview). The law provides for exceptions for situations where a law requires consideration of the applicant’s conviction history as well as for law enforcement, criminal justice, tax commission, or alcoholic beverage control employers, as well as for applicants that will work with children or vulnerable adults and nonemployee volunteers. VERMONT HOUSE BILL 261 (2016) (APPLIES TO PRIVATE AND PUBLIC EMPLOYMENT): prohibits asking about criminal record information on the initial employment application form, and the prospective employee must be permitted the opportunity to explain the information, including rehabilitation. VIRGINIA HOUSE BILL 757 (2020) (APPLIES TO PUBLIC EMPLOYMENT): requires delay into inquiries about arrests, charges, and convictions until an interview of the prospective employee. The law includes exceptions for certain positions, including those with law enforcement, local school boards, and those that are “sensitive” in nature. EXECUTIVE ORDER 41 (2015) (APPLIES TO EMPLOYMENT IN STATE EXECUTIVE BRANCH): requires the removal of questions relating to criminal history from initial applications for state employment in the executive branch and prohibits employers from basing hiring decisions on an applicant’s conviction history unless demonstrably job-related and consistent with business necessity. In 2020, Governor Northam also signed House Bill 972. The law prohibits any employer from requiring an applicant to disclose any arrest, charge, or conviction of marijuana possession and limits the availability of records related to any arrest, charge, or conviction of marijuana possession to certain circumstances, including eligibility for firearm purchase, pretrial investigation reports, and probation reports. WASHINGTON HOUSE BILL 1298 (2018) (APPLIES TO PRIVATE AND PUBLIC EMPLOYMENT): requires delaying inquiries into conviction records and background checks until after determining an applicant is otherwise qualified for the job. It also prohibits employers from implementing any policy that categorically excludes people with records before the determination as to whether the candidates are otherwise qualified. WISCONSIN ASSEMBLY BILL 373 2016) (APPLIES TO STATE EMPLOYMENT): prohibits inquiring about a person’s record on the job application and delays inquiries until the applicant is certified for the position.

In 2012, the Equal Employment Opportunity Commission (EEOC), under Title VII of the Civil Rights...

In 2012, the Equal Employment Opportunity Commission (EEOC), under Title VII of the Civil Rights Act of 1964, issued guidelines advising employers to consider the specifics of each candidate who may be denied employment based on a background check. How does the EEOC define individualized assessments? Per the Equal Employment Opportunity Commission (EEOC), individualized assessments are defined as: "Individualized assessment generally means that an employer informs the individual that he may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him; and considers whether the individual's additional information shows that the policy as applied is not job related and consistent with business necessity." How can employers meet the requirements under Title VII? According to the commission, employers will consistently meet the "job related and consistent with business necessity" under Title VII if: They developed their screening policy considering the following factors (the three Green factors). The nature and gravity of the offense or conduct. The time that has passed since the offense or conduct and/or completion of the sentence. And the nature of the job held or sought. And then provide an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity. The individualized assessment would consist of notice to the individual that they have been screened out because of a criminal conviction; an opportunity for the individual to demonstrate that the exclusion should not be applied due to his particular circumstances; and consideration by the employer as to whether the additional information provided by the individual warrants an exception to the exclusion and shows that the policy as applied is not job related and consistent with business necessity. How to create an individualized assessment process The best practice is to create and document a fair individualized assessment process that goes hand-in-hand with your adverse action process. You should then distribute and train your hiring managers on these processes. In general, these processes may govern: Which offenses wouldn't adversely affect an employment decision because they are minor, irrelevant, etc. Which factors to examine on a criminal record during an individualized assessment. When, if at all, to ask about criminal history (to comply with "Ban the Box" laws). How to reach out to candidates to gain additional information or context on a criminal record. How to account for severity, age, relevance, and disposition during adjudication. How to document individualized assessments for candidates with whom you will initiate an Adverse Action process. How Orange Tree can help We provide a range of compliance tools to streamline the screening process and keep you in compliance. We provide automated adverse action letters with individualized assessment language and an adjudication tool that supports the regular application of decision criteria within job groups, building consistency into the hiring process. Automated Adjudication. Orange Tree's adjudication tool, HireGuide, allows employers to define their hiring policies and adjudication guidelines and is enforced by our adjudication specialists to review discrepancies on applications. This service automates the decision process and makes hiring easier, more consistent, and increases compliance. HireGuide helps those managing a large number of candidates, creating efficiencies when a candidate's report is clear and controlling information and permissions when a report requires additional review. Advantages: Identifies candidates eligible for the individualized assessment process. Supports consistent, company-wide employment decisions within job classifications. Minimizes errors throughout the hiring process. Reduces the time needed to review results (up to 80%). Supports efficient candidate onboarding. Adverse Action Orange Tree provides automated FCRA adverse action letter generation and delivery (pre-populated with the candidate's name and address and your company's name) compliant based upon individual state requirements. We also allow you to add your written individualized assessment verbiage into the adverse action notice. Orange Tree can configure a solution to match your screening program policies and processes. Schedule a call to learn how we can help you maintain a consistent and compliant hiring process.