Pre-Employment Drug Testing Not Compensable Under California Law Holds Ninth Circuit

by Lisa Barnett Sween, Sayaka Karitani - The National Law Review

In a recent decision by the Ninth Circuit, the Court of Appeals upheld the district court ruling in favor of grocery chain WinCo Holdings, Inc., holding that plaintiffs who were not yet employees when they took drug tests were not entitled to compensation for the time spent being tested.

In Johnson v. WinCo Foods Holdings, Inc, et al. (WinCo), a class of applicants who successfully received job offers and subsequently were hired as employees of WinCo brought claims alleging, they should have received compensation as an employee for the time and expense of taking a pre-employment drug test. Under WinCo’s procedures at the time, a hiring manager would call successful applicants to extend a job offer contingent on the completion of a background check and drug test. WinCo paid for the testing fee but did not compensate for travel expenses or the time required to undergo the testing.

Read more: https://www.natlawreview.com/article/pre-employment-drug-testing-not-compensable-under-california-law-holds-ninth-circuit

‘Clean Slate’ laws are taking hold: Colorado joins list

by Tom D’Agostino - HR Morning

Colorado has joined a growing list of states that have passed what are known as “Clean Slate” laws, lending momentum to a trend that is likely to see additional states follow suit — perhaps in the near future.

Gov. Jared Polis signed Colorado’s Clean Slate Act into law at the end of May. According to the Clean Slate Initiative, Colorado is the seventh state to enact such a law. The growing trend began relatively recently: Starting with Pennsylvania, all seven states have enacted their Clean Slate laws since 2018.

Read more: https://www.hrmorning.com/news/clean-slate/

Background Checks Bill Passes Senate

by Ashley Hoffman - CalChamber Alert

A California Chamber of Commerce-supported bill that will restore the accessibility of key court electronic indexes for conducting background checks passed the Senate this week.

SB 1262 (Bradford; D-Gardena) preserves access to work by removing roadblocks to timely completion of employment background checks.

It passed the Senate with unanimous support on May 24 and moves on for consideration in the Assembly.

Read more: https://calchamberalert.com/2022/05/27/background-checks-bill-passes-senate/

How one little background check mistake landed this employer in court

by Tom D’Agostino - HR Morning

Do you conduct background checks on job applicants? If the answer is yes, this is an important case to know.

A state appeals court in California has revived a putative class action suit that accuses an employer of willfully violating the federal Fair Credit and Reporting Act (FCRA) by providing job applicants with an improper disclosure relating to its acquisition and use of consumer reports.

Read more: https://www.hrmorning.com/news/background-checks/

Federal Appeals Court Sides with Employer in Job Applicant’s Background Check Suit: 3 Steps to Avoid Similar Claims

by Richard Millisor, Fisher Phillips - JD Supra

A job applicant who didn’t disclose a felony conviction can’t sue her prospective employer under a federal background-check law for failing to provide proper notice before rescinding her offer, according to a recent decision from a federal appeals court. The job applicant didn’t claim the background report was wrong. Instead, she argued that she should have been given a chance to explain the conviction before the offer was withdrawn. In Schumacher v. SC Data Center, Inc., the 8th U.S. Circuit Court of Appeals ruled in favor of the employer even though it technically violated the Fair Credit Reporting Act (FCRA). The act doesn’t give applicants the right to explain negative but accurate information in a consumer report before the employer can make an adverse employment decision, the court said in a May 3 decision. Although the ruling is good news for employers, you should take the following three steps to comply with FCRA’s notice requirements and avoid similar claims.

Read more: https://www.jdsupra.com/legalnews/federal-appeals-court-sides-with-1410611/

Credit reporting law doesn't give job seekers a right to explain criminal history, 8th Circuit says

by Debra Cassens Weiss - ABA Journal

A job applicant turned down for a job because she didn’t disclose her criminal history can’t sue the employer in federal court for a violation of the Fair Credit Reporting Act, a federal appeals court ruled on Tuesday.

The St. Louis-based 8th U.S. Circuit Court of Appeals said the rejected applicant, Ria Schumacher, did not have standing to pursue her case because the FCRA does not require employers to give job applicants a chance to explain the information uncovered in their consumer reports.

Read more: https://www.abajournal.com/web/article/credit-reporting-law-doesnt-give-job-seekers-a-right-to-explain-criminal-history-8th-circuit-says

Arizona Strengthens Background Check Requirements for Nursing Home and Skilled Nursing Facility Employees

by Nonnie L. Shivers, Aaron S. Nava - The National Law Review

On March 18, 2022, Arizona Governor Doug Ducey signed nineteen bills into law, including, most notably for nursing home and assisted living facility employers, Senate Bill (SB) 1242, which strengthens employee background checks.

Read more: https://www.natlawreview.com/article/arizona-strengthens-background-check-requirements-nursing-home-and-skilled-nursing

Sands Shift for Background Screening for Manufacturers

by Kristina H. Vaquera, Shaun M. Bennett - The National Law Review

Manufacturing employees have a hand in everything that our country produces. Naturally, manufacturers want to know their employees are reliable and trustworthy. Manufacturers are taking steps, including background checks, to ensure a single hire does not inadvertently cause liability.

Read more: https://www.natlawreview.com/article/sands-shift-background-screening-manufacturers

Recent Holdings Contain New Defenses to Class Actions

by Robert T. Quackenboss, Lukas Moffett - The National Law Review

Of the many class action-related decisions from the last year, two courts issued holdings that are particularly relevant to defending against class action lawsuits (particularly in the context of the Fair Credit Reporting Act (FCRA)).

Davis v. Universal Prot. Services, LLC, No. 20-CV-01758, United States District Court for the Eastern District of Pennsylvania:

In Davis, the plaintiff (and putative class) alleged that the defendant violated the FCRA by (1) procuring a criminal background check on her; (2) relying on the contents of the criminal background check; and (3) failing to provide her FCRA-compliant notice prior to determining that she was ineligible for employment. The plaintiff alleged that the defendant’s failure to provide FCRA-compliant notice caused her harm by preventing her from challenging and/or having a meaningful discussion about the contents of her criminal background check report.

Read more: https://www.natlawreview.com/article/recent-holdings-contain-new-defenses-to-class-actions

Wisconsin Supreme Court Strengthens Employers Defenses in Some Arrest and Conviction Record Discrimination Cases

by Christina L. Wabiszewski - Foley

The Wisconsin Supreme Court recently released its decision in Cree, Inc. v. Labor and Industry Review Commission, overturning long-established precedent regarding when an applicant with a domestic violence conviction record may be disqualified from the position because the conviction is “substantially related” to it. Wisconsin Stat. § 111.335(3) prohibits discrimination based on an applicant’s or employee’s arrest or conviction record unless the record is “substantially related” to the underlying position.

Read more: https://www.foley.com/en/insights/publications/2022/04/wi-supreme-court-strengthens-employers-defenses