FCRA class action lawsuits continue. In recent news, Top Class Actions reported that Plaintiff Jonathan Santiago Rosario sued Starbucks for violating the Fair Credit Reporting Act (FCRA) by denying him a job based on inaccurate background results, and did not allow him to correct the results.
Rosario, who is from Colorado, applied for a job at a Starbucks in Castle Rock, CO in March 2016. Results from a background check included criminal felony and misdemeanor records from counties in Pennsylvania. Starbucks sent Rosario a letter dated April 20 that informed him that his background results did not meet company requirements, but by the time Rosario says he received the letter, Starbucks had removed him for employment consideration.
Rosario claimed that the information included in the background check was inaccurate – he said he has never even been to Pennsylvania. He challenged the inaccurate results in May, following the background company’s dispute procedure, and the corrected report was forwarded to Starbucks. The company declined Rosario claimed that despite several calls to Starbucks to revive his job application, the company declined to revisit its decision not to hire him.
The lawsuit claims that Starbucks violated the FCRA by failing to give Rosario meaningful opportunity to dispute the information on his background check. He proposes to represent a class action “that would include U.S. persons who applied for a job at Starbucks and who were the subject of a Starbucks background check report on which the company based an adverse employment decision, but who did not receive a timely copy of that report or the FCRA summary of rights.”
As an update to the Client Alert posted in December, Corporate Screening would like to share the following information about the recent Los Angeles “ban the box” legislation that will go into effect this month.
On December 19, 2016, Los Angeles Mayor Eric Garcetti signed into law the Los Angeles Fair Chance Initiative for Hiring. The new ordinance becomes effective on January 22, 2017.
Under the ordinance, employers located in Los Angeles are prohibited from inquiring into or seeking a job applicant’s criminal history unless and until a conditional offer of employment has been made to the applicant. This includes prohibiting:
- Questions on an initial employment application regarding criminal history;
- Questions about criminal history during an in-person interview; and
- Conducting any sort of criminal history background check before extending a conditional offer.
Additionally, employers have posting requirements to inform applicants of the provisions of the ordinance.
Adverse Action Requirements
Once employers review an applicant’s criminal history, the employer may not take any adverse action (such as a denial of employment) unless the employer completes and provides the applicant with a written assessment of the applicant’s criminal history “that effectively links the specific aspects of the applicant’s criminal history with risks inherent in the duties of the employment position sought by the applicant.”
Employers are also required to:
- Provide the applicant with written notice of the adverse action;
- Provide the applicant with five days to submit information refuting the findings of the assessment; and
- Retain records of such adverse action assessments for a period of three years from the date of the initial application.
Exceptions to the ordinance include:
- If the employer is required by law to inquire about criminal history;
- If the position requires the applicant to carry a gun; or
- If other laws prohibit persons with criminal histories to hold the position in question.
Enforcement and Penalties
Under the ordinance, employers are subject to administrative enforcement as well as civil action in court.
- Applicants or employees that believe an employer may be in violation of the ordinance may report the alleged violation within one year of the violation to the Department of Public Works, Bureau of Contract Administration (“The Department”), which shall investigate the complaint.
- The Department may also initiate an investigation of alleged violations.
- If an employer is found to be in violation of the ordinance the Department will issue a written notice requiring the employer to cure the violation and may impose administrative fines of up to $2,000 per violation.
- An applicant or employee may also bring a civil action in court for violation of the ordinance within one year of completion of the administrative enforcement process.
- The Department is authorized to issue warnings to employers immediately with penalties and fines being effective July 1, 2017.
Employers should review and revise their hiring practices accordingly.
As a reminder, Corporate Screening’s partner, Form I-9 Compliance, will be offering complimentary webinars that will review the new electronic Form I-9 on Monday, January 9, 2017 and Tuesday, January 10, 2017. The webinars will identify the features of the eForm I-9, what has changed and guidance on proper completion. There will also be a live question and answer session.
To register for a webinar, please click on one of the following links:
All employers should begin using the revised Form I-9 by January 22, 2017. The new version is dated 11/14/2016 N.
To view the significant changes to each section of the new Form I-9, please review our previous client alerts:
On January 1, 2017, new “ban the box” legislation will take effect in Los Angeles, California. The “Fair Chance Initiative for Hiring Ordinance” was signed by Los Angeles Mayor Eric Garcetti on December 9, and it prohibits employers from asking job applicants about criminal convictions until after a conditional offer of employment.
The new ordinance affects private employers with 10 or more employees (employees must work at least two hours per week on average) within the geographic boundaries of Los Angeles, as well as all city contractors. The law states that:
- Employers can only ask about an applicant’s criminal history after a conditional offer of employment has been made;
- If an employer decides to take adverse action based on the applicant’s criminal history, they must consider the EEOC factors, “create a written assessment that effectively links the specific aspects of the Applicant’s Criminal History with risks inherent in the duties of the Employment position sought,” and provide the applicant with the evaluation.
Penalties for violating the law include fines up to $500 per violation and employers may also be subject to private lawsuits. To read the ordinance in its entirety, click here.
As 2016 winds down and the holiday season approaches, Corporate Screening invites you to take a look at a few of our favorite things from this year. Happy holidays to all!
Corporate Screening’s partner, Form I-9 Compliance, has shared that they anticipate the release of its revised Electronic Form I-9 (version 11/14/2016 N) on January 11, 2017. Please note that employers can continue to use the version dated 3/8/2013 N until January 22, 2017.
Form I-9 Compliance will be offering complimentary webinars, “Introducing the Release of the New eForm I-9 (Version 11/14/2016 N)” on Monday, January 9, 2017 at 10 a.m. PST (1 p.m. EST) and Tuesday, January 10, 2017 at 10 a.m. PST (10 a.m. EST). The webinars will identify the features of the eForm I-9, what has changed, and guidance on proper completion. There will also be a live Q&A session that attendees can take part in.
To register for a webinar, please click on one of the links below:
Important Changes to Section 3
- When completing Section 3 on a new Form I-9 page, the employer must also complete the Last Name, First Name and Middle Initial fields in the Employee Info from Section 1 area at the top of Section 2, leaving the Citizenship/Immigration Status field blank.
- NOTE: the Electronic Form I-9 will auto populate the Last Name, First Name and Middle Initial fields from Section 1 and leave Citizenship/Immigration Status field blank.
- If an employee who is being re-verified or rehired has also changed his or her name since originally completing Section 1, the employer is instructed to enter only the part of the name that has changed;
- For example, if the employee changed only his or her last name, enter the new last name in the Last Name field, then enter N/A in the First Name and Middle Initial fields. If the employee has not changed his or her name, the employer should enter N/A in each field of Block A.
NOTE: the Electronic Form I-9 will auto populate N/A when no data is recorded.
Corporate Screening’s partner, Form I-9 Compliance, is finalizing programming and testing for the release of its revised Electronic Form I-9 (version 11/14/2016 N). As you are aware, USCIS recently announced the release of the revised form I-9, effective November 14, 2016. By January 22, 2017, employers must use only the new version, dated 11/14/2016 N. Until then, you can continue to use the version dated 3/8/2013 N or the new version.
As we receive more information about the new programming and the accompanying informational webinars, we will share it with you. At this time, here are the most important changes to Section 2.
Section 2: Most Important Changes
- USCIS has added a new “Citizenship/Immigration Status” field at the top of Section 2, where the employer is expected to write the number corresponding with the citizenship/immigration status selected by the employee in Section 1.
- For example, if the employee attested to being:
- A citizen of the United States, the employer must record the number 1 in this new field.
- A noncitizen national of the United States, the employer must record the number 2 in this new field.
- A lawful permanent resident, the employer must record the number 3 in this new field.
- An alien authorized to work until, the employer must record the number 4 in this new field.
- NOTE: the Electronic Form I-9 will auto populate the Citizenship/Immigration Status number, based on the Section 1 selection by the employee.
- For example, if the employee attested to being:
- The Form I-9 instructions indicate that employers must enter “N/A” in Section 2 if a particular document presented does not contain a document number or expiration date (as applicable).
- Section 2 has a new dedicated area to enter additional information that employers are currently required to notate in the margins of the paper form, such as:
- Employment authorization extensions for Temporary Protected Status (TPS) beneficiaries;
- F-1 OPT STEM students;
- H-1B and H-2A employees continuing employment with the same employer or changing employers;
- Other nonimmigrant categories that may receive extensions of stay; and
- Additional document(s) that certain nonimmigrant employees may present.
- NOTE: the Electronic Form I-9 also has an “Add Notes” feature that allows employers to notate this additional information.
The Section 2 Last Name (Family Name) and First Name (Given Name) fields have been changed to Last Name (Family Name) of Employer or Authorized Representative and First Name (Given Name) of Employer or Authorized Representative respectively, to prevent any confusion regarding the name that should be entered.
Coming soon, we will share information about the most important changes to Section 3 with you.
Employers, please note that the U.S. Citizenship and Immigration Services (USCIS) recently announced the release of a revised Form I-9, effective November 14, 2016. Employers will be required to use only the new version by January 22, 2017. The new version is dated 11/14/2016 N.
Corporate Screening’s partner, Form I-9 Compliance is finalizing the programming required for the release of the revised Electronic Form I-9. At this time a release date has not been announced, but Corporate Screening will let keep you advised as we learn more about that. Additionally, Form I-9 Compliance will release webinars on the new features of the Form I-9 and what has changed. The webinars will also include guidance on the proper completion of the new Form I-9. We will share information about the times and dates of these webinars as soon as it becomes available.
To assist you in the transition, Form I-9 Compliance has identified some of the most important changes in Section 1 of the new Form I-9, as outlined below.
Section 1 Most Important Changes:
- USCIS has replaced the “Other Names Used” field in Section 1 with “Other Last Names Used” in order to avoid possible discrimination issues and to protect the privacy of transgender and other individuals who have changed their first names.
- Section 1 has been modified to request that aliens authorized to work record EITHER their;
- Alien Registration Number (A-Number)/USCIS Number OR
- Form I-94 Admission Number OR
- Foreign Passport Number & Country of Issuance.
- If the employee does not use a Preparer or Translator to assist in completing Section 1, he or she must indicate so on a new check box labeled, “I did not use a preparer or translator.” In addition, the form enables the completion of multiple Preparers and Translators, each of whom must complete a separate Preparer and/or Translator Section.
- No blank spaces are allowed. If an employee does not provide any of the following information in Section 1, he/she must enter N/A on the Form I-9.
- Middle Initial
- Other Last Names Used
- Employment Authorization Expiration Date
- Alien Registration/USCIS Number
- Form I-94 Admission Number
- Foreign Passport Number
- Country of Issuance
- E-mail Address
- Telephone Number
Look for additional information soon regarding changes to Sections 2 and 3.
Corporate Screening Invites you to read the latest issue of our quarterly newsletter, Screening Solutions. Containing articles that will inform you about issues related to background screening, important compliance updates, and student background screening news, this is a newsletter that you don’t want to miss!
This issue of Screening Solutions features several compliance articles, including a feature that examines the impact of the Spokeo court decision on FCRA class action lawsuits. You can also read about how voters in eight states approved marijuana referendums on the ballot, and how this may affect employers.
In other news, how much do you really know about your company’s business relationships. CSBusinessScreen,com, a customizable business relationship background check system developed by the people here at Corporate Screening, can help you find out. There’s also information about Corporate Screening’s holiday hours, feedback from our Client Satisfaction survey, information about student drug screening best practices, and much more.
We hope you enjoy the newsletter!
Please note that beginning Thursday, November 24, the Kane, Illinois courts will be updating their system. An estimated completion date of December 5, 2016 has been provided. During this time, index searches will be unavailable. All searches ordered during the system update will be placed on hold until after the system updates are complete.
We appreciate your patience and apologize for any inconvenience this may cause.