legislation Archives

Massachusetts employers cannot ask about criminal history on initial job applications

As of November 4, 2010, Massachusetts employers are prohibited from asking about criminal records on the initial job application, except for positions for which a federal or state law, regulation or accreditation disqualifies an applicant based on a conviction, or if the employer is mandated by a federal or state law or regulation not to employ
individuals who have been convicted of a crime.

The new law also has two provisions that will become effective February 6, 2012. Under the first provision, an employer in possession of criminal record information must disclose that information to the applicant, prior to asking about it. And similar to the requirements of the Fair Credit Reporting Act, if an employer decides not to hire an
applicant in whole or in part because of the criminal record, the employer must provide the applicant with a copy of the record.

The second provision requires employers who conduct five or more criminal background investigations annually to implement and maintain a written criminal record information policy. The policy, at minimum, must specify procedures for (1) notifying applicants of the potential for an adverse decision based on the criminal record, (2) providing
a copy of the criminal record and the written policy to applicants, and (3) dispensing information to applicants about the process for correcting errors on their criminal record.

The law imposes penalties (including imprisonment for up to one year or a fine of up to $5,000 for an individual and $50,000 for a company) for those who request or require an applicant to provide a copy of his/her criminal record except under conditions authorized by law, and prohibits harassment of the subject of the criminal record (punishable by imprisonment of up to one year, or a fine of not more than $5,000.)

|Criminal Activity, Educational Series, Employment Decisions, Legislation|

Illinois Employee Credit Privacy Act (096-1426)

Effective January 1, 2011, the Act will prohibit employers, in many circumstances, from inquiring about or using an employee’s or prospective employee’s credit history as a basis for employment, recruitment, discharge, or compensation. The Act also will prohibit an employer from retaliating or discriminating against a person who files a complaint under the Act, participates in an investigation, proceeding or action concerning a violation of the Act, or opposes violation of the Act. Pursuant to the Act, an employer will not:

Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, term, condition, or privilege of employment because of the individual’s credit history or credit report.
Inquire about an applicant’s or employee’s credit history.
Order or obtain an applicant’s or employee’s credit report from a consumer reporting agency.

Exceptions to the Act are as follows:

State or federal law requires bonding or other security covering the individual holding the position.
Duties of the position include custody of or unsupervised access to cash or marketable assets valued at $2,500 or more.
Duties of the position include signatory power over business assets of over $100 or more per transaction.
Position is managerial, and involves setting the direction or control of the business.
Position involves access to personal or confidential information, financial information, trade secrets, or state or federal national security information.

The Act also states that nothing in its provisions shall prohibit employers from conducting a thorough background investigation which may include obtaining a consumer report and/or investigative report without information on credit history, as permitted by the Fair Credit Reporting Act (FCRA).

|Educational Series, Employment Decisions, Legislation|

What is a qui tam lawsuit?

A qui tam is a provision of the Federal False Claims Act that allows private citizens, also known as whistleblowers or relators, to bring a lawsuit in the name of the U.S. Government against entities or persons suspected of fraud in the use of government funds. The qui tam plaintiff, if successful in the suit, is entitled to a percentage of the funds recouped by the government, which generally is between 15 to 30% of the recovered amount. Qui tam verdicts and settlements can reach into billions of dollars. In the fiscal year ending September 30, 2009, the Justice Department recovered $2.4 billion in false claims cases, and posted total recoveries of more than $24 billion since 1986.

|Educational Series, Legislation|

Update on Senate Bill 1045 (OL 2010. Ch. 102) which amends Oregon Revised Statute 659A.885 that restricts employer’s use of credit history in employment decisions

The Oregon Bureau of Labor and Industries published its final administrative rules regarding Senate Bill 1045 (OL 2010. Ch. 102). The regulations go into effect July 1, 2010. The Oregon Revised Statute 659A.885 specifically prohibits an employer from obtaining or using credit history for employment purposes of an applicant or employee unless that credit history information is “substantially job-related, and the employer’s reasons for the use of such information are disclosed to the employee or prospective employee in writing.” The state of Oregon set up a hotline (at 971-673-0824) to explain the new regulations. The regulations can also be viewed online at http://www.oregon.gov/BOLI/LEGAL/docs/RulesSoS0052010.pdf

|Educational Series, Employment Decisions, Legislation|

Searching for violators of the Social Security Act for program-related fraud and patient abuse?

Try the U.S. Department of Health & Human Services – Office of Inspector General Web site (http://oig.hhs.gov/.)

For many years the Congress of the United States has worked diligently to protect the health and welfare of the nation’s elderly and poor by implementing legislation to prevent certain individuals and businesses from participating in federally-funded health care programs. The OIG, under this congressional mandate, established a program to exclude individuals and entities affected by the various legal authorities, contained in sections 1128 and 1156 of the Social Security Act, and maintains a list of all currently excluded parties called the List of Excluded Individuals/Entities, at http://oig.hhs.gov/fraud/exclusions.asp. Basis for exclusion include convictions for program-related fraud and patient abuse, licensing board actions and default on Health Education Assistance Loans.

|Educational Series, Legislation|

Alert Regarding Sexual Offender Data

A new California case came out March 23, 2010 that gives a background firm protection when it reports sexual offender data from the Megan’s Law Web site, and also clarifies that the prohibition of using sex offender registration information for employment does not apply when there is a person at risk.
For a quick review of the case, see:
http://www.esrcheck.com/wordpress/1440/california-case-protects-constitutional-right-of-background-screening-firm-to-report-sex-offender-registration.
The actual case can be found at:
http://www.courtinfo.ca.gov/opinions/documents/B214653.PDF

|Educational Series, Legislation|