November 21st, 2017 | Debbie Lamb, Sterling Talent Solutions

Sterling Responds to “HR Compliance in 2018” Questions & Answers

There have been many changes in employment laws that impact the hiring process throughout 2017. From ban the box to salary history bans to more states legalizing the recreational and medicinal use of marijuana, it has been a very busy year. 2018 looks to be just as busy. There could be more alterations to employment laws and regulations that govern the background screening industry to come in the New Year. The changing laws can be overwhelming to an employer, and if regulations are not complied with properly, an organization might have to deal with penalties and large fines.

Sterling feels that it is important to be a source for the latest updates about employment law compliance changes and how this can affect the hiring and background screening process. After our recent “HR Compliance in 2018: Are You Ready” webinar, we received quite a few questions about a variety of topics from ban the box laws to Form I-9. Jennifer L. Mora, Senior Counsel of Seyfarth Shaw LLP, spent time after the webinar answering the many questions. We compiled the top questions from webinar attendees below:

Pay Equity and Salary History Ban

1. In states where asking about salary is banned, is it still okay to ask about preferred salary?Generally, employers may continue to ask an applicant to state their salary expectations but the laws could differ in each jurisdiction.
2. If as an organization, we make the decision to keep the salary history question on the application with a footnote that states “if you are in XYZ” state you do not have to answer,” could we be held liable if the candidate answers this question and we use it in our hiring decision?It depends on the jurisdiction at issue. Some jurisdictions allow an employer to consider salary history that has been voluntarily disclosed whereas other jurisdictions require the employer to ignore the information.
3. In jurisdictions with salary bans, can an employer request paystubs or W2’s to determine the salary for candidates?In most jurisdictions, no, although some may allow you to request such information after a conditional offer has been made if the offer sets out the compensation that will be paid and if the applicant accepts the offer. We recommend employers confer with employment counsel on these state and local variations.

Recreational and Medical Marijuana

1. For the statutory protection for marijuana use, does the state apply to the location of the employer or where the candidate lives at the time?The state where the medical marijuana card was issued.

Ban-the-Box Laws

1. Is an individual assessment necessary for felony murder and felony sexual convictions in the states/jurisdictions identified?If a jurisdiction requires an individualized assessment, then such an assessment is required for any conviction, regardless of severity, unless the employer is subject to an exemption (e.g., federal law prohibits an employer from employing a person with certain criminal records).
2. What factors should be considered in an individualized assessment?It varies by state, but the Equal Employment Opportunity Commission (EEOC) recommends consideration of the following factors:
   • The facts or circumstances surrounding the offense or conduct
   • The number of offenses for which the individual was convicted
   • Older age at the time of conviction or release from prison
   • Evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct
   • The length and consistency of employment history before and after the offense or conduct
   • Rehabilitation efforts, e.g., education/training
   • Employment or character references and any other information regarding fitness for the particular position
   • Whether the individual is bonded under a federal, state, or local bonding program

   Employers should speak with employment counsel for state and local requirements.

3. Can you ask the criminal disclosure question post-offer on the Background Check Authorization and Disclosure form? We recommend the criminal disclosure question be presented in a document that is separate and apart from the disclosure and authorization required by the Fair Credit Reporting Act (FCRA).

Form I-9

1. With regard to the I-9, should the employer provide the full Instructions to the employee?The U.S. Citizenship and Immigration Services (USCIS) requires that the instructions be made available to individuals, either in print or electronically, but the most conservative and recommended practice is to provide the instructions to the individual.
2. What are some of the penalty fees for errors on I-9’s?It depends on the error or issue. Employers that violate federal immigration law may be subject to civil fines and/or criminal penalties as well as debarment from government contracts.
3. If we have used the old I-9 for after September 18^th, do we need have the employee refill out the new form?Existing employees do not have to complete the new I-9. The most current version of the I-9 can be found at https://www.uscis.gov/i-9

Keep Alert for New Regulations in 2018

Always review with legal counsel all state and local regulations affecting employment law. Find out more about compliance issues employers should keep an eye on in 2018 by downloading the OnDemand version of “HR Compliance 2017: Are You Ready?” Sterling also conducts a quarterly FCRA Compliance webinar series to keep attendees current on the latest FCRA compliance updates. Sign up for these very informative webinars today!

Please note: Sterling is not a law firm. The material available in this publication is for informational purposes only and nothing contained in it should be construed as legal advice. We encourage you to consult with your legal counsel to obtain a legal opinion specific to your needs.

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