|
STATE UPDATES
Note: GIS strongly recommends that our clients review the state statutes further and consult with their legal counsel on the impact these statues may have on them.
Arkansas
Drug Testing Law
The state has amended its Commercial Driver Alcohol and Drug Testing Act with respect to reporting test results, the use of the Commercial Driver Alcohol and Drug Testing Database, and penalties (Act 456 (H. 1612), L. 2009, at AR ¶4-8600).
State Employment Disability Discrimination Policy
The Arkansas Department of Human Services, its divisions, offices and programs has adopted a revised policy, DHS 1078, that prohibits discrimination on the basis of disability against qualified individuals with disabilities in regard to job application procedures, hiring, advancement, discharge, compensation, and other terms, conditions, and privileges of employment. All medical examinations and inquiries will be conducted as required by federal law. Reasonable accommodation will be made for qualified individuals with disabilities, if the reasonable accommodation does not create an undue hardship. The revisions simplify the DHS policy and revise the ADA complaint process. Policy DHS 1078, Sections 1078.1.0 through 1078.8.0 and Attachment A, as amended effective Feb. 16, 2010. Paras 4-20,800.01 through 4-20,800.08 and 4-23,500.21 and 4-23,500.22.
Colorado
Discrimination Based on Arrest Record Law
The fact that a person has been convicted of a felony or other offense involving moral turpitude shall not, in and of itself, prevent the person from applying for and obtaining public employment. However, employees or applicants convicted of offenses involving moral turpitude are to be terminated and restricted in positions involving vulnerable persons in public employment. Title 24, Article 5, Section 24-5-101 and Title 27, Article 1, Section 27-1-110. Paras 6-23,500.01 and 6-23,500.21.
Delaware
Criminal Background Checks
Effective January 1, 2011, any candidate for a Student Teaching Position in a public school district or charter school shall be required to have a criminal background check as a condition of employment. The candidate will cooperate in all respects with this criminal background check process, or his/her application cannot be accepted. On completion of the procedure, the candidate will be given a Verification Form of Processing by the State Bureau of Identification, which may be shown to the candidate’s placing higher education institution as proof that the candidate has completed the procedure. It is recommended that the applicant should retain the Verification Form of Processing for his/her records. Title 14, Section 14-700-746, as amended effective Dec. 11, 2009. Para 8-23,650.02.
Illinois
Recordkeeping/Posters Law
The Identity Protection Act will take effect July 1, 2010. The law provides that a person, state or local government agency must redact social security numbers from information or documents containing all or any portion of an individual's social security number (P.A. 96-874 (H. 547), L. 2009, enacted January 22, 2010, at IL ¶14-9900).
Iowa
Preemployment Inquiries Law
The state has amended its law relating to criminal history and abuse registry checks for employees of health care facilities (S. 2149, L. 2009, enacted February 23, 2010, at IA ¶16-9000).
New Jersey
Drug Testing Law
The state has enacted a law that will require applicants and employees of state psychiatric hospitals, developmental centers and veteran’s homes to undergo drug testing (Ch. 220 (S. 2493), L. 2009, effective 90 days after enactment, at NJ ¶31-8600).
Pre-employment Inquiries Law
The Compassionate Use Medical Marijuana Act requires that persons applying for employment in alternative treatment centers undergo a criminal history record background check (Ch. 307 (S. 119), L. 2009, at NJ ¶31-9000).
Also, the law relating to background checks for certain persons working with children has been amended (Ch. 254 (S. 52), L. 2009, at NJ ¶31-9000), and a new law will require employees of international labor matching or matchmaking organizations to undergo background checks (Ch. 152 (A. 1942), L. 2009, at NJ ¶31-9000).
New Mexico
Criminal Background Checks
In performing criminal background checks in public employment, a board, department or agency of the state or a political subdivision of the state will not be able to make an inquiry regarding a job applicant’s conviction on an initial application under legislation enacted March 8. Senate Bill 254, which becomes effective May 19, provides that the public employer will only be able to take into account a conviction after the applicant has been selected as a finalist for the position. Currently, the law provides the public employer may take a conviction into consideration in determining eligibility for public employment or for a license, permit, certificate or other authority to engage in a regulated trade, business or profession, but that such conviction is not to operate as an automatic bar to obtaining a public employment or license or other authority to practice a trade, business or profession. Criminal records cannot be considered when a record of arrest is not followed by a valid conviction or in the case of a misdemeanor conviction not involving moral turpitude (New Mexico S.B. 254, L. 2010, enacted March 8, 2010, and effective May 19, 2010).
New York
Criminal Background Checks Rules
Prospective unlicensed employees of nursing homes, certified home health agencies, licensed home care services agencies and long term home health care programs who will provide direct care or supervision to patients, residents or clients of such providers are required to undergo a criminal background check as a condition of employment. The adopted regulation establishes standards and procedures for criminal history record checks and govern the procedures by which fingerprints will be obtained and describe the requirements and responsibilities of the Department and the affected providers with regard to this process. Title 10, Chapter V, Subchapter A, Article 1, Part 402, Sections 401.1 through 401.10, as adopted as permanent Nov. 11, 2009. Paras 33-23,651.01 through 33-23,651.10.
Evidence of workplace sabotage sufficient to satisfy an adverse employment action under Burlington Northern
The evidence of workplace sabotage and punitive scheduling offered by employees, who participated in an investigation and hearing concerning their director’s racial discrimination against a coworker, were sufficient to satisfy the employees’ burden of showing an adverse employment action under Burlington Northern; a reasonable employee might be dissuaded from participating in an investigation or proceeding if he knew that in retaliation, he would be disciplined for failing to arm a security system or that his work schedule would be changed so that he would have to work alone in a more dangerous facility Hicks v Baines (2dCir) 93 EPD ¶43,804.
Oregon
House passes Job Applicant Fairness Act, which restricts job-related credit checks
The Oregon House passed the Job Applicant Fairness Act that would expand the Fair Employment Act’s (Ch. 659A) employment discrimination protections on the basis of an applicant’s credit history. Under SB 1045, employers will be prohibited to obtain or use information contained in the credit history of an applicant for employment or an employee to refuse to hire, discharge, demote, suspend, retaliate or otherwise discriminate against an applicant or an employee based on credit history information. Exempt employers are: (1) federally insured banks or credit unions; (2) required by state or federal law to use individual credit history for employment purposes; (3) public safety officers commissioned by the state; and (4)using the information in the credit history of an applicant or employee because it is substantially job-related. The bill now moves to the Governor’s desk for his signature. Full text of the bill is located at http://www.leg.state.or.us/10ss1/measures/sb1000.dir/sb1045.en.html.
Texas
Drug Testing Law
The state has amended its law relating to alcohol and drug testing policies of towing operators (Ch. 757 (S. 702), L. 2009, effective January 1, 2010 at ¶45-8600).
Utah
Criminal Background Checks Rules
Utah amended the rule regarding eligibility for child care personnel by clarifying that not all DUI convictions result in a person being ineligible to provide licensed child care. Only a Misdemeanor A conviction, which means a conviction which involved transporting a minor while driving under the influence, or inflicting bodily injury to another while driving under the influence, would make a person ineligible to provide licensed child care. Rule 430-6, Section 430-6-4, as amended effective Jan. 1, 2010.
Criminal Background Checks Rules
The rule regarding required reports of arrests and background check policies for non-licensed education employees was amended to provide new language clarifying that the Utah State Office of Education (USOE) will review background check information only for licensed educators. New definitions used within the new language have also been added to the rule ( Rule 277-516, Sections R277-516-1, R277-516-4, R277-516-5, and R277-516-7, as amended effective Dec. 8, 2009).
Virginia
EEO in State Employment
Gov. Robert F. McDonnell signed an executive order on Feb. 5, 2010, prohibiting discrimination in the state workforce on the basis of race, sex, color, national origin, religion, age, political affiliation, or against otherwise qualified persons with disabilities. The order also permits appropriate employment preferences for veterans and specifically prohibits discrimination against veterans; however, sexual orientation was removed as a protected class as included in previous executive orders. Executive Order No. 06-2010, signed Feb. 5, 2010, effective immediately. Para 49-23,302.
Washington
Preemployment Inquiries Law
The Department of Labor and Industries has amended a rule relating to service letters. Every employer must furnish to a former employee, within 10 business days of receipt of the former employee's written request, a signed written statement that gives the reasons for the former employee's discharge and the effective date of the discharge (WAC 296-126-050, amended effective March 15, 2010, at WA ¶49-9000).
Recordkeeping/Posters Law
The Department of Labor and Industries has amended standards of labor rules covering employer posting requirements to specify that employers must keep posted in the workplace these rules in a form provided by the department, titled “Your Rights as a Worker in Washington State.” Such rules must be positioned in a readily accessible location and within plain view in each worksite where an employee or employees work (WAC 296-126-050 and 296-126-080, amended effective March 15, 2010, at WA ¶49-9900).
Wisconsin
CDL New State Law
Gov. Robert F. McDonnell signed an executive order on Feb. 5, 2010, prohibiting discrimination in the state workforce on the basis of race, sex, color, national origin, religion, age, political affiliation, or against otherwise qualified persons with disabilities. The order also permits appropriate employment preferences for veterans and specifically prohibits discrimination against veterans; however, sexual orientation was removed as a protected class as included in previous executive orders. Executive Order No. 06-2010, signed Feb. 5, 2010, effective immediately. Para 49-23,302.
New Data Bank Will Help Hospitals with Background Checks
A national data base for background checks on licensed medical professionals from all 50 states will be available for hospitals to examine on March 1.
Hospitals can already access the National Practitioner Data Base, which contains records on physicians and dentists, such as license or privilege suspensions, and malpractice payments that are reported by state and federal oversight agencies and health plans.
Now, restricted access data stored in the separate Healthcare Integrity Protection Data Bank, which records adverse licensure actions for all medical professionals, including nurses, technicians, chiropractors, and podiatrists, will be added to the NPDB for hospitals to examine.
HIPDB has been available only to health plans, state and federal oversight agencies, and individual medical professionals for self-queries.
The data will be collected by sources that include malpractice payers, state licensing and certification boards, hospitals, peer review organizations, accreditation organizations, and professional societies that conduct peer review.
It will be available for hospitals, healthcare professional societies that conduct peer review, state medical and dental boards, law enforcement, and for self-queries from medical professionals.
Businesses like temporary healthcare staffing companies, however, will usually not be allowed access to the data.
DHS Rescinds 2007 No-Match Rule
In a major reversal of Bush Administration immigration policy, DHS rescinded its controversial 2007 no-match rule, while at the same time announcing the Obama Administration's full support for E-Verify by increasing the reach of the program to require certain federal contractors and subcontractors, including those who receive Recovery Act funds, to use the program to verify the employment eligibility of their new hires and existing employees.
Mississippi
As of July 01, 2010, employers with 30-99 employees will have to comply with the Mississippi Employment Protection Act (SB 2988) which requires all Mississippi agencies, political subdivisions, private employers, contractors, subcontractors and third-party employers that conduct business in Mississippi to use E-Verify.
Oklahoma
The 10th Circuit Court in Oklahoma reversed a lower court’s decision against the enforcement of a mandate requiring employers to use the E-Verify system if they enter into contracts with the state or with any other public entity of the state. In the same ruling, they struck down two portions of the law, one which sought to create a new cause of action against Oklahoma employers that discharge US citizen or legal permanent resident employees while retaining undocumented workers and the second which required all Oklahoma businesses to obtain documents to verify the work eligibility of their independent contractors or withhold certain taxes from them.
South Carolina
As of July 01, 2010, all employers must perform special verification for newly-hired employees. These employers will be required either to use E-Verify or review a qualifying driver’s license or qualifying identification card.
Reprinted with permission from CCH, a Wolters Kluwer Company
|
