On June 5, 2019, Governor Sisolak signed Assembly Bill 132, an Act revising Chapter 613 of the Nevada Revised Statutes (NRS) governing employment practices. Under the revised law, employers are prohibited from denying employment to a prospective employee because of the presence of marijuana in a pre-employment drug screening test, with certain exceptions.

The Basics

• Location: Nevada
• Legislation: AB 132
• Type: Drug Testing
• Effective Date: January 1, 2020

Key Takeaways:

• Prohibits the denial of employment because of the presence of marijuana in a drug screening.
• Provides employees the right to submit to an additional screening test to rebut the results of the initial drug screening test.

Which employers are affected?

All employers as defined under Chapter 613 of the NRS.

What is prohibited in the law?

• Employers are prohibited from failing or refusing to hire a prospective employee because the prospective employee submitted to a drug screening test (blood, urine, hair, or oral fluids) and the results of the screening test revealed the presence of marijuana.
• If an employer requires an employee to submit to a screening test within the first 30 days of employment, the employee shall have the right to submit to an additional screening test, at his or her own expense, to rebut the results of the initial screening test. The employer shall accept and give appropriate consideration to the results of such a screening test.

Are there any exceptions?

The drug screening provisions do not apply if the prospective employee is applying for a position as a:

• firefighter, as defined in NRS 450B.071;
• that requires an employee to operate a motor vehicle and for which federal or state law requires the employee to submit to screening tests; or
• that, in the determination of the employer, could adversely affect the safety of others.

An employer does not have to consider the results of an employee’s retest if:

• to the extent that they are inconsistent or otherwise in conflict with the provisions of an employment contract or collective bargaining agreement;
• to the extent that they are inconsistent or otherwise in conflict with the provisions of federal law;
• employment position is funded by a federal grant

Seyfarth Shaw has also provided an overview you may read here.

Recommendations

We recommend you review and discuss with drug testing vendors, Medical Review Officers, and legal counsel your organization’s policies and procedures to ensure compliance with the changing laws and regulations. For more information regarding recent legislative changes in other states and jurisdictions, visit our Legislative Updates page.

*Please note: The information provided above is strictly for educational purposes. It is not intended to be legal advice, either expressed or implied. Accurate Background recommends that you consult with your legal counsel regarding all employment regulations. 

New York City Council passed Int. No. 1445-A, an amendment to Title 8 of the administrative code for the city of New York, expanding on its list of unlawful discriminatory practices in employment. Under the new amendment, employers are prohibited from requiring prospective employees to submit to pre-employment drug testing for the presence of marijuana and tetrahydrocannabinol (THC) as a condition of employment.

The Basics

• Location: New York City, NY
• Legislation: INT 1445-2019
• Type: Drug Testing
• Effective Date: May 10, 2020

Key Takeaways:

• Prohibits employers from requiring a prospective employee to submit to testing for the presence of marijuana or any tetrahydrocannabinol (THC) as a condition of employment.
• Exceptions are provided for a variety of positions and situations. Employers should discuss with their counsel if the exceptions apply to them.

What is prohibited in the law?

• It shall be an unlawful discriminatory practice for an employer, labor organization, employment agency, or agent thereof to require a prospective employee to submit to testing for the presence of any marijuana or tetrahydrocannabinols (THC) in such prospective employee’s system as a condition of employment, except as otherwise provided by law.

Are there any exceptions?

Yes. Exceptions to this law include, but are not limited to, persons applying to work:

• As police officers or peace officers;
• In any position requiring compliance with section 3321 of the New York city building code or section 220-h of the labor law;
• In any position requiring a commercial driver’s license;
• In any position requiring the supervision or care of children, medical patients or vulnerable persons;
• In any position with the potential to significantly impact the health or safety of employees or members of the public;
• In positions in which drug testing is required pursuant to applicable federal law, state law, or regulations

Recommendations

We recommend you review and discuss with drug testing vendors, Medical Review Officers, and legal counsel your organization’s policies and procedures to ensure compliance with the changing laws and regulations. For more information regarding recent legislative changes in other states and jurisdictions, visit our Legislative Updates page.

*Please note: The information provided above is strictly for educational purposes. It is not intended to be legal advice, either expressed or implied. Accurate Background recommends that you consult with your legal counsel regarding all employment regulations. 

Colorado has joined a growing number of jurisdictions that have passed "ban‐the‐box" laws. The law limits when employers can inquire into and consider the criminal history of a job applicant.

Updates to Ban-the-Box Law

The Basics

• Location: Colorado
• Legislation: HB 19-1025
• Type: Ban the Box
• Effective Date: September 1, 2019 for Employers with 11 or more employees; September 1, 2021 for all employers

Key Takeaways:

• Employers cannot inquire about or require an applicant to disclose criminal history on an initial application.
• Prohibits stating in an advertisement that a person with a criminal history may not apply for the position.
• Prohibits placing a statement in an employment application that a person with a criminal history may not apply for a position.

Which employers are affected?

This law applies to all private sector employers, regardless of size. In addition, this also include employment agencies as defined as well as any agent, representative or designee of an employer.

What is prohibited in the law?

• Employers are prohibiting from advertising or placing a statement on the employment application that a person with a criminal history may not apply for the position.
• Employers are also not allowed to inquire into, or require disclosure of, an applicant’s criminal history on the initial written or electronic application.

Are there any exceptions?

Yes, the following are exempt from this bill:

• Federal, State, or Local Law or Regulation prohibits employing for the position a person with a specific criminal history.
• The position is designated by the employer to participate in Federal, State, or Local government program to encourage the employment of people with criminal histories.
• The employer is required by Federal, State, or Local Law or Regulation to conduct a criminal history record check for that position, regardless of whether the position is for an employee or independent contractor.

Recommendations

We recommend you review the Bill in its entirety and discuss with your legal counsel your organization’s policies and procedures to ensure compliance with the changing laws and regulations.

*Please note:  The information provided above is strictly for educational purposes.  It is not intended to be legal advice, either expressed or implied.  Accurate Background recommends that you consult with your legal counsel regarding all employment regulations.

Accurate Background’s Chief Compliance Officer, Bon Idziak, discusses compliance with the changing and ongoing laws around background checks, including regional and special jurisdiction laws.

Accurate Background’s Chief Compliance Officer, Bon Idziak, discusses the biggest pitfalls for Marketplace companies in staying compliant with regional and special jurisdiction laws. The overview includes a look at how these laws apply across permissible purpose types and examples of recent requirements.

Legislators in Westchester County, New York approved the “Fair Chance to Work Act” (hereafter, the “Act”), amending Chapter 700 of the Laws of Westchester County related to prohibiting discrimination based on an individual’s arrest record or criminal conviction. Under the Act, employers are, among other requirements, prohibited from making a preliminary or initial inquiry into a criminal conviction or arrest record in an application for employment.

Updates to Ban-the-Box Law

The Basics

• Location: Westchester County, NY
• Legislation: The Fair Chance to Work Act
• Type: Ban the Box
• Effective Date: On or around March 3, 2019

Key Takeaways:

• Affects any employer with four or more employees.
• Prohibits employers from making a preliminary or initial inquiry or statement related to a criminal conviction or arrest record in an application for employment.
• Employer shall perform an analysis of the applicant’s criminal record and other factors as required under Article 23-A of the New York Correction Law.
• The employer must provide a written statement setting forth the reasons for taking adverse action upon request.

Which employers are affected?

The law affects any employer with four or more employees.

What is prohibited in the law?

Employers may not:

• Make a preliminary or initial inquiry or statement (in writing or otherwise) related to a criminal conviction or arrest record of any person until after submission of an employment application.
• Require an applicant to respond to any preliminary or initial inquiry or statement. Any refusal to respond to such inquiry or statement shall not disqualify an applicant from prospective employment.
• Declare, print or circulate or cause to be declared, printed or circulated any solicitation advertisement or publication which expresses, directly or indirectly any limitation or specification in employment based on a person's arrest record or criminal conviction.

Can employers still consider and take adverse action based on an applicant’s criminal history?

Yes. After submission of an application for employment an employer may inquire about the applicants' arrest or conviction record in accordance with New York State Executive Law 296(16). However, before taking any adverse action based on such inquiry, the employer shall perform an analysis of the applicant’s criminal record and other factors under Article 23-A of the New York State Correction Law.

Additionally, the analysis performed in accordance to Article 23-A of the New York State Correction Law may be requested by the applicant, and if requested, the employer must provide a written statement to the applicant setting forth the reasons for such denial.

Are there any exceptions?

Yes, including, but not limited to the below, the Act does not apply to:

• Employers who take actions pursuant to any state, federal or County law that requires criminal background checks for employment purposes or bars employment based on criminal history.
• Any actions taken by an employer with regard to an applicant for employment as a police officer or peace officer.

Recommendations

We recommend you review and discuss with your legal counsel your organization’s policies and procedures to ensure compliance with the changing laws and regulations.

*Please note:  The information provided above is strictly for educational purposes.  It is not intended to be legal advice, either expressed or implied.  Accurate Background recommends that you consult with your legal counsel regarding all employment regulations.