PDQ Legal

Governor Signs CORI Reform Prohibiting Massachusetts’ Employers from Inquiring About Criminal Convictions on “Initial” Applications.

On August 6, 2010, Governor Patrick signed into law legislation overhauling the Commonwealth’s Criminal Offender Record Information law (CORI). The new law contains several provisions that will affect employers’ use of the criminal histories of prospective and current employees.

Employers Should No Longer Ask About Convictions On “Initial” Job Applications.

The new law prohibits employers from asking questions on an “initial written application form” about an applicant’s “criminal offender record information,” which includes information about criminal charges, arrests, and incarceration.

E-Verify Three Day Rule

Since the Immigration Reform and Control Act became law in 1986, employers have understood that the I-9 needed to be completed within three days of hire. Background screening companies that became designated agents for E-Verify have also been aware that three days was the rule.

E-Verify was recently redesigned and during the training sessions, USCIS mentioned that employers “have three days after the employee’s date of hire” to open the case in E-Verify. Because this differs from the general understanding held by employers, USCIS was encouraged to clear up the confusion. On June 30, 2010, USCIS issued the following statement: “If the employee starts work for pay on Monday, the third business day after the employee started work for pay is Thursday (assuming all days were business days for the employer). The first day the employee starts work for pay is not included in the three business day calculation.”

Oregon Law Barring Credit Checks For Employment Purposes Effective July 1, 2010

On July 1, 2010, the Oregon Bureau of Labor and Industries will implement legislation (S.B. 1045a) which will prohibit the use of credit history for employment purposes including hiring, discharge, promotion and compensation.

The bill, which was passed by the legislature earlier this year, provides exceptions for financial institutions, public safety offices and other employers if credit history is “substantially job-related”. The Bureau of Labor and Industries has adopted final rules implementing the law, including the definition of “substantially job-related.” According to the final rules, an employee’s credit history is substantially job-related if an essential function of the job “requires access to financial information not customarily provided in a retail transaction”, or if the credit history is necessary in order for the employer to obtain insurance or bonding. Many employers believe that the language in the rules provides enough leeway for most employers to continue the practice of using credit histories for positions with access to sensitive financial information, according to a statement issued on June 9, 2010 from the Association of Oregon Industries, a major employer group.

Red Flag Rules Postponed Again to December 31, 2010

The FTC has once again postponed enforcement of the Red Flag Rules—this time to December 31, 2010. This may be due to pending litigation by the AMA as well as the ABA. Please follow the link to read further:

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Reg Flag Rule—New Enforcement Date of June 1, 2010

The FTC has passed regulations requiring certain “Creditors” and “Financial Institutions,” to create Identity Theft Prevention Programs if they have certain covered accounts. These regulations require that such entities must have these programs in place by June 1, 2010. The regulations, known as “Red Flag” rules, are designed to help uncover, prevent, or mitigate identity theft in different types of financial transactions.

Arizona Immigration Law Contested in Lawsuits

The “Support Our Law Enforcement and Safe Neighborhoods Act” (or Senate Bill 1070) was signed into law by Governor Jan Brewer on April 23rd. The most controversial feature of SB 1070 authorizes and compels law enforcement officers to verify the legal status of persons resonably believed to be illegally present in the country. The bill is scheduled to take effect on July 28, 2010.

Pursuant to SB 1070, employers must retain E-Verify verification records for the duration of a worker’s employment or three years (whichever is longer). E-Verify participation is required of Arizona employers under the Legal Arizona Workers Act. The new record retention requirement would presumably be satisfied by printing an E-Verify screenshot which shows the case verification. Alternatively, employers may annotate the Form I-9 with the case verification number or use electronic I-9 software which retains an electronic “paper trail” showing E-Verify completion. SB 1070 also provides employers with the affirmative defense to a state law charge of intentionally or knowingly employing an unauthorized worker if the employer can prove it was entrapped by law enforcement officials. In addition, SB 1070 makes stopping a motor vehicle to pick up and hire individuals for work a misdemeanor if the motor vehicle blocks or impedes traffic.

An amendment to SB 1070 designed to reduce the likelihood of racial profiling was passed on April 30th. House Bill 2162 limited the circumstances under which law enforcement officials should confirm an individual’s lawful immigration status. However, there were no significant changes to the employment-related provisions noted above.

The courts are already entertaining objections to SB 1070. Several lawsuits have been filed contesting the validity of SB 1070. Two lawsuits were filed on April 29th and another was filed by a group of interested organizations and persons including the ACLU on May 17th.

While awaiting the outcome of this litigation, Arizona employers are encouraged to keep the required E-Verify records (if not already doing so) by no later than the July 28th effective date.

Utah Passes E-Verify Law

Utah Governor Gary R. Herbert has signed into law a bill that will require Utah employers with 15 or more employees to use E-Verify. The Verification of Employment Eligibility law (SB251) will go into effect on July 1, 2010. However, before signing the bill into law Governor Herbert first secured a commitment from the bill’s sponsor to work to amend the bill to further clarify its intent, specifically that E-Verify participation will clearly be voluntary. An amendment is supposed to be implemented before the July 1 effective date.

Oregon Law Bans Use of Credit Reports

On March 29, 2010, Oregon Governor Kulongoski signed legislation (SB1045) that specifically prohibits employers from using credit history in making hiring, discharge, promotion, and compensation decisions unless the applicant or employee is given advanced written notice and the credit history is substantially related to the position sought. The legislation provides additional exceptions for financial institutions and public safety offices. This law is effective immediately.

NH COURTS TO CLOSE AS FURLOUGHS HIT JUDICIAL SYSTEM

In order to meet a budget shortfall of 3.1 million dollars, the NH Judicial Branch announced that all New Hampshire courts and judicial branch administrative offices will be closed on the following days:
Friday April 2, 2010 Friday April 30, 2010 Friday May 28, 2010

E-Verify News

State E-Verify and I-9 Laws
South Carolina: Audits Conducted, Citations Issued, But Initial Fines Waived South Carolina’s 2008 law requiring employers to take additional steps to verify the work status of newly hired persons is in the process of being implemented. The law’s requirement that employers either in E-Verify (the electronic employment eligibility verification system operated by United States Citizenship and Immigration Services) or review an approved driver’s license participate or state-issued identification card of newly-hired employees is being phased in. Currently private employers with 100 or more employees are subject to the additional verification requirement. After some initial aggressive enforcement tactics last summer, the South Carolina Department of Labor, Licensing and Regulations (LLR) has settled into a more defined process for auditing compliance with the law.

More recently, reports indicate that LLR has been steadily auditing businesses and processing tips from the public about possible violators, with nearly 90 audits being performed in the month of January. Over 30 of the audited businesses were cited for violations. Fines for non-compliance have been issued including one for $42,500. However, the penalties are waived for a first-time violation and if corrective steps are immediately taken by affected employers. The audits will likely continue as the law is expanded to include all businesses on July 1, 2010. Employers are reminded to review current verification procedures to ensure compliance with not only federal law but also state law.

Oklahoma: Injunction Against E-Verify Requirement Reversed
Oklahoma’s Taxpayer and Citizen Protection Act of 2007 contains a provision requiring employers that contract with the state to use E-Verify, the Internet-based system operated by United States Citizenship and Immigration Services that allows employers to verify the employment eligibility of employees. This provision of the law was challenged as unconstitutional by several business organizations led by the U.S. Chamber of Commerce. The primary argument of the U.S. Chamber was that the law conflicts with the federal Immigration Reform and Control Act (IRCA) and therefore is preempted.
In June 2008, a federal district court found that the U.S. Chamber was likely to prevail on the merits and therefore issued a preliminary injunction against enforcement of the law’s E-Verify provision. On appeal, the Tenth Circuit Court of Appeals reversed the district court’s grant of a preliminary injunction against enforcement of the E-Verify provision. Thus, it appears that Oklahoma may soon be able to enforce the E-Verify provisions of the law.