Compliance News Flash

Arnall Golden Gregory LLP is pleased to provide you with the Compliance News Flash, which includes current news briefs relevant to background screening, immigration and data privacy, for the benefit and interest of our clients as well as employers and consumer reporting agencies generally.

• The partial government shutdown continues, with no resolution in sight. If it goes past this weekend (which it will), it will be the longest on record. Which means that E-Verify continues to be offline and the cases employers will need to input into the system once it is operational continue to mount. Here’s my advice to employers from last week. Here’s a link to U.S. Citizenship and Immigration Services’ website and their news about E-Verify being offline.
• Delta Air Lines agreed to pay $2.3 million to settle a class-action lawsuit alleging that the company failed to provide approximalty 44,000 job applicants with a stand-alone background check disclosure during the hiring process, in violation of the Fair Credit Reporting Act (FCRA). Delta’s hiring forms allegedly contained extraneous and misleading information that could not be easily understood without reading the FCRA itself. The FCRA requires a “clear and conspicuous” stand-alone disclosure be provided to job applicants prior to requesting a background check. Employers should annually review their disclosure and authorization notice to ensure it is compliant with federal/state law or risk exposure to litigation. Read the motion for preliminary approval of class action settlement here (Schofield v. Delta Air Lines, Case 3:18-cv-00382). 
• A reminder to employers: be sure to draft arbitration provisions in employment contracts in compliance with the FCRA. The District Court for the Northern District of California ruled in Alvarado v. Lowe’s Home Centers that disputes arising during the hiring process are covered under the arbitration provision of an employment contract, if drafted properly. The plaintiff, a former Lowe’s Home Centers employee, signed an arbitration agreement at the time of hiring to resolve any employment disputes. The plaintiff alleged that Lowe’s conducted background checks during the hiring process without making the required FCRA disclosures. The plaintiff argued that because the alleged violations occurred before the plaintiff signed the employment agreement, the plaintiff should not be required to resolve the issue in arbitration. The court ruled in favor of the defendant, finding that the arbitration clause within the employment contract did cover disputes during the hiring process. Read the court order here.

• The FTC published an updated version of the FCRA, current to September 2018. View the full Act here. And for those of you that care, it’s in LSU colors.

• The Colorado State Legislature convened last week and Representatives Jovan Melton and Leslie Herod introduced H.B.19-1025, the Colorado Change to Compete Act, which would enact ban the box requirements for private employers in Colorado. If passed and signed into law, employers would be prohibited from inquiring into a job applicant’s criminal history on an initial application. Employers would also be prohibited from advertising or stating on the application that a person with a criminal history may not apply to a position. Keep an eye on this legislation as, if enacted, it’ll make Colorado the 12th state with a statewide ban applicable to private employers, if I’m not mistaken.