Recent state law developments will affect whether and to what extent certain employers can conduct credit and criminal background checks on employees and applicants. Employers, particularly multi-state employers, should be sure to review these new requirements and adjust their practices accordingly.

Massachusetts

The Commonwealth has changed how employers access and use criminal offender record information ("CORI") under a new law signed by Governor Deval Patrick on August 6, 2010. Among other things, the new CORI law bans the use of questions about criminal history on written employment applications. This ban becomes effective November 4, 2010. The law also creates a new method and database for employers to access criminal records, replacing the current procedure with the Criminal History Systems Board. This becomes effective in May 2012.

(more information about this change)

Illinois

Illinois employers will have a tougher time conducting credit checks on applicants and employees and using the information for employment purposes beginning January 1, 2011. The state’s new Employee Privacy Act (House Bill 4658), signed by Governor Pat Quinn on August 10, 2010, prohibits all but a handful of employers from:

  1. inquiring into an applicant’s or an employee’s credit history;
  2. ordering a credit report on an applicant or employee from a consumer reporting agency; or
  3. taking any adverse employment action (such as refusing to hire) because of the individual’s credit history or credit report.

An aggrieved individual can bring a private cause of action in state court to enforce the Act and can seek injunctive relief and damages as well as costs and attorneys’ fees.
 

(more information about this change)

Oregon

Oregon employers’ ability to conduct credit checks and use the information for employment purposes has been significantly restricted since July 1, 2010, but the implications of this law extend well beyond state borders. With limited exceptions, Oregon Senate Bill 1045 prohibits employers from considering for employment purposes any information that bears on a consumer’s creditworthiness, credit standing or credit capacity, unless such information is substantially related to the individual’s current or potential job. Employers who believe credit information meets this job-related standard must provide the employee or applicant the reasons for their determination in writing.

(more information about this change)

Tags: background check, Background Checks, criminal, criminal offender record information, Illinois, Massachusetts, Oregon
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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.

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