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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.
Hawaii
Preemployment Inquiries Law
The Hawaii Health Systems Corporation may request a criminal history record check of persons who are employed or seeking employment, or who are current or prospective contractors, providers, or volunteers in any of the corporation's health facilities. Those that have been convicted of a criminal offense for which incarceration is a sentencing option may be terminated, released, or not used. This action shall be based on the corporation's analysis of whether the nature and circumstances of the crime may pose a risk to the health, safety, or well-being of patients, residents, and organizations in its health facilities.
Illinois
Preemployment Inquiries Law
The Illinois “Right to Privacy in the Workplace Act” has been amended to remove invalid provisions in the law that prohibit employers from enrolling in any Electronic Employment Verification System, such as E-Verify. Instead, the law now urges employers considering voluntary enrollment in these programs to consult the Illinois Department of Labor's website for current information on the accuracy of E-Verify, and to review and understand the employer’s legal responsibilities relating to use of the program. The revised law also requires employers to fill out and post an attestation form prescribed by the Illinois Department of Labor giving notice of the employer's use of the program; prohibits employers from using the program prior to hiring; and prohibits employers from terminating an employee or from taking any other adverse employment action prior to receiving a final nonconfirmation notice from the Social Security Administration or the Department of Homeland Security.
Louisiana
Preemployment Inquiries Law
After the completion of a criminal background check of a nonlicensed health care individual, the Department of Public Safety and Corrections or authorized agency shall provide to the employer only such information as is necessary to specify whether or not that person has been arrested for or convicted of or pled nolo contendere to any crime or crimes, the crime or crimes for which this occurred, and the date or dates on which the crime or crimes occurred.
Missouri
Preemployment Inquiries Law
Any entity contracting with the state or any political subdivision of the state shall only be required to provide the required affidavits to the state and any political subdivision of the state with which it contracts, on an annual basis. During or immediately after an emergency, the requirement of a business entity to enroll and participate in a federal work authorization program shall be suspended for 15 working days.
New Hampshire
Criminal Background Checks Law
For the duration of licensure or certification, every individual selected for employment with any health care facility or entity who is required to be licensed or certified must submit to the employer a notarized criminal conviction record release authorization form, including volunteers. Volunteers do not include any person admitted to a facility or entity or who resides in an affiliated corporate entity that is an integral part of the same community.
Oregon
Criminal Background Checks Law
If a school district, private school contractor (whether part-time or full-time) or an employee of a contractor has been convicted of a crime listed in ORS 342.143 (3), a school district may not employ or contract with the person and a private school may choose not to employ or contract with the person. Notification by the superintendent that the school district may not employ or contract with the person shall remove the person from any school district policies collective bargaining provisions regarding dismissal procedures and appeals. If any of the persons described above states on a criminal history form provided by the Department of Education that the person has not been convicted of a crime but the criminal records check indicates that the person has a conviction, the department shall determine whether the person knowingly made a false statement as to the conviction. The department shall develop a process and criteria to use for appeals of a determination.
South Carolina
Criminal Background Checks Law
Following a first offense conviction for a crime carrying a penalty of not more than 30 days imprisonment or a fine of $500, or both, an individual after 3 years from the date of the conviction may apply to the circuit court for an order expunging the records of the arrest and conviction.
Texas
Criminal Background Checks Law
If a facility providing services for the elderly and disabled employs a person pending a criminal history check, the facility shall ensure that the person has no direct contact with a consumer until the facility obtains the person's criminal history record information and verifies the person's employability.
Utah
Criminal Background Checks Law
An employer, who is not a health care facility and is hiring an individual to provide services to an elderly or disabled person in the home of the elderly or disabled person, may obtain a background check of the individual from the Department of Health via the database of substantiated abuse and neglect cases. However, the employer must certify to the department that the employer intends to hire, or has hired, the individual whose information the employer has submitted to the department for the purpose of providing care to an elderly adult or a disabled person in the home of the elderly adult or disabled person.
Criminal Background Checks Rules
The Utah Board of Education has adopted rules providing standards and procedures for requiring licensed public education employees to report certain types of arrests to employers and to require school districts and charter schools to have periodic background check and arrest-reporting policies for non-licensed public education employees.
FEDERAL UPDATES
OLMS Issues Proposed Rule on Employee Notice Requirements for Federal Contractors.
The Office of Labor-Management Standards has published a proposed rule setting forth the notification requirements of federal contractors and subcontractors pursuant to President Obama's Executive Order 13496 which directed that rules be promulgated requiring contractors to inform employees of all protected rights under the NLRA.
The Executive Order requires the Secretary of the Department of Labor to initiate a rulemaking to prescribe the size, form, and content of the notice that must be posted by a contractor under paragraph 1 of the contract clause described in section 2 of the Order. Under the Executive Order, Federal Government contracting departments and agencies must include the required contract provisions in every Government contract, except for collective bargaining agreements and contracts for purchases under the Simplified Acquisition Threshold, and except in those cases in which the Secretary exempts a contracting department or agency with respect to particular contracts or subcontracts or class of contracts or subcontracts pursuant to section 4 of the Order. As required by the Executive Order, this proposed rule establishes the content of the notice required by the Executive Order's contract clause, and implements other provisions of the Executive Order, including provisions regarding sanctions, penalties, and remedies that may be imposed if the contractor or subcontractor fails to comply with its obligations under the Order and the implementing regulations.
House Bill Would Suspend Statute of Limitations for FLSA Suits During DOL Investigations.
House Democrats introduced legislation which they say will ensure that workers do not lose wages while the Department of Labor (DOL) investigates "wage theft" by employers who drag out agency compliance investigations. The Wage Theft Prevention Act (H.R. 3303) would amend the Portal-to-Portal Act to suspend the statute of limitations for certain rights of action under the Fair Labor Standards Act (FLSA) during investigations by the Secretary of Labor. The measure "would ensure that delays in investigating claims of wage theft will not result in a permanent loss of back pay for workers," said Rep. George Miller (D-Calif), chairman of the House Education and Labor Committee, who sponsored the bill.
Other bills introduced recently would:
• provide immigration reform by enabling a practical employer verification program.
FTC Cracks Down on Employers that Fail to Give FCRA-Required Notice
Two companies will pay a total of $77,000 in civil penalties to settle Federal Trade Commission charges that they violated federal law by firing employees and rejecting job applicants based upon the results of background checks without informing the affected individuals of their rights under the Fair Credit Reporting Act (FCRA). The FTC alleged the companies used the results of background checks to make hiring and firing decision that constituted “adverse actions” without providing pre-adverse action notices and adverse action notices as required. Furthermore, in those instances where adverse action notices were provided, they did not contain the required information. The separate settlements require the defendants to pay $53,000 and $24,000 in civil penalties, respectively, and contain recordkeeping and reporting provisions that will allow the FTC to monitor the defendants' ongoing compliance with the Act.
E-VERIFY UPDATES
E-Verify Now Required for Federal Contractors
According to regulation 73 Fed. Reg. 67,651 (November 14, 2008), certain federal contracts awarded or solicited on or after Sept. 8, 2009, will be required to contain a new E-Verify clause. This clause will minimally require the use of E-Verify to confirm employment eligibility for all new hires and all employees who perform work directly under the contract. Employers, however, also have the option of screening all employees using E-Verify.
Under this regulation, any contractor with this clause and any applicable subcontractors are required to enroll in the E-Verify program within 30 days of receiving the contract. These contractors and subcontractors receive 90 days from the date of enrollment with E-Verify to initiate verification queries for existing employees who will be working on the federal contract and to begin using the system to verify newly hired employees.
If the contractor is already enrolled in E-Verify for 90 days or more at the time of a contract award, he must use E-Verify to verify employment eligibility for all new hires within 3 business days after their date of hire. Any existing employees assigned to the contract must be verified within 90 calendar days after date of contract award or within 30 days after assignment to the contract (whichever is later).
DHS Notifies Users of Possible E-Verify Misuse
The E-Verify Monitoring and Compliance Branch is responsible for ensuring the appropriate use of E-Verify. The Monitoring and Compliance Branch will notify users of any possible misuse violation via a compliance letter sent through the postal mail. If you receive a compliance letter and have any questions, please contact your dedicated account manager. Thank you in advance for your attention to this important matter.
Missouri Attorney General's Office Adopts Immigration Rules
The Missouri Attorney General’s Office adopted rules implementing the law prohibiting private and public employers and business entities from employing an unauthorized alien to perform work within the state. Also, as a condition for the award of any contract or grant in excess of $5,000 by the state or by any political subdivision of the state to a business entity, or for any business entity receiving a loan from the state, the business entity shall submit an affidavit containing a statement that: (1) the business entity has enrolled in, and is currently participating in, E-verify; (2) that the business entity does not knowingly employ any person who is an unauthorized alien in conjunction with the contracted services; and (3) a notarized signature of the registered agent, legal representative of the business entity, or a corporate officer, including, but not limited to, the human resources director of the business entity or their equivalent.
Nebraska Taxpayers Must Register Under E-Verify for Certain incentives
The Nebraska Department of Revenue has issued a notice that states that taxpayers who plan to apply for a project under a Nebraska tax incentive program on or after October 1, 2009, should register for E-Verify now and electronically verify the work eligibility of all newly hired employees employed in Nebraska as of October 1, 2009. To claim a research and development credit for a tax year beginning on or after January 1, 2009, taxpayers need to verify the work eligibility of all newly hired employees employed in Nebraska beginning on or after October 1, 2009.
Reprinted with permission from CCH, a Wolters Kluwer Company
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