Recent compliance updates across the country may require a closer look at your organization’s screening and onboarding procedures. This month, we’re covering fair chance changes in San Francisco and Washington state, revised substance use testing rules in Maine, and new Colorado requirements for employment eligibility verification.
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San Francisco Expands Fair Chance Ordinance Protections
San Francisco recently amended its Fair Chance Ordinance (FCO), which regulates how employers use criminal history information when making employment decisions. The changes go into effect on Aug. 10.
Under the new amendments, employers cannot take an adverse employment action based on out-of-state convictions or arrests when the conduct is legal in California. The protected categories involve:
- Abortion-related healthcare
- Drag performances
- Gender-affirming care
- Spontaneous abortion
The amendments also strengthen requirements when candidates respond to a pre-adverse action notice. If an applicant or employee submits information within seven days of receiving a notice, the employer must acknowledge the submission within 14 days, delay the adverse action for a reasonable period, and reconsider the decision based on the new information.
The FCO applies to employers with five or more employees that are located or doing business in San Francisco.
What San Francisco Employers Need to Know
If you’re covered under the FCO, consider these steps to prepare:
- Review criminal history policies: Make sure your screening and individualized assessment processes account for the new restrictions on out-of-state records.
- Update adverse action procedures: Review how your team receives, documents, and considers information submitted in response to a pre-adverse action notice.
- Train hiring teams: Train anyone involved in screening or employment decisions to understand which criminal records may not be considered.
- Keep up with state and local laws: San Francisco’s FCO includes requirements that differ from California’s statewide law. Stay up to date on both state and local requirements and review your screening policies regularly as compliance rules change.
Maine Revises Workplace Substance Use Testing Rules
In Maine, new revisions to the state’s workplace substance use testing law affect when employers can test workers. The changes went into effect on July 29.
Among the changes, employers may now conduct criteria-based testing based on a set event, such as a promotion or work anniversary. Criteria-based testing can also occur when a client requests it for a project or when working at a specific site.
The law also replaces probable cause testing with reasonable suspicion testing, based on specific and observable facts that reasonably indicate impairment. Reasonable suspicion cannot be based on information from an anonymous source or information about off-duty drug use. A single workplace accident also isn’t enough to establish reasonable suspicion without observable behavior indicating impairment.
Other procedural changes address employees’ ability to contest non-negative results and medical review officer procedures. Medical marijuana use under state law is considered a legitimate medical explanation for a confirmed positive result.
What Maine Employers Need to Know
If you conduct workplace drug testing in Maine, these changes may affect how you handle testing procedures. Take these steps:
- Review your testing policy: Determine whether your current policy reflects the revised testing categories and procedures, including criteria-based and reasonable suspicion testing.
- Consider reasonable suspicion practices: Train supervisors to recognize and document specific, observable signs that may indicate impairment.
- Check policy approval requirements: Make sure your written substance use testing policy complies with Maine requirements and has been submitted for state Department of Labor review when required.
Washington Publishes Updated Fair Chance Act Guidance
The Washington state attorney general recently released a Washington Fair Chance Act Guide for Employers and Applicants to help employers comply with changes to the state’s Fair Chance Act. The amended law took effect on July 1 for employers with 15 or more employees.
The guide outlines employers’ responsibilities when considering criminal history, including when they may request background information and what steps they must take before making adverse employment decisions.
It can also help employers satisfy one of the law’s requirements. If an employer tells an applicant that a position will require a background check after a conditional offer, or if the applicant voluntarily discloses criminal history, the employer must provide these notices:
- A written notice explaining the Fair Chance Act
- A copy of the Washington attorney general’s updated guide
What Washington Employers Need to Know
If you hire in Washington, review the updated guide and consider taking these steps:
- Keep the guide accessible: Provide recruiters and hiring managers with access to the guide so they can share it when required.
- Train your hiring team: Make sure hiring managers understand when criminal history can be requested and how to respond if a candidate voluntarily discloses it.
- Watch for additional guidance: Continue monitoring updates from the Washington attorney general’s office that may help your organization comply with the amended Fair Chance Act.
Colorado Adds New Requirements for Handling Identification Documents
Colorado has added new state-specific requirements for how employers handle government-issued identification documents during employment eligibility verification.
Under the law, employers cannot confiscate or improperly retain an employee’s ID. Employers may temporarily hold an identification card when reviewing or copying it for employment eligibility verification, but only for as long as necessary and no more than 10 hours.
Employers must also provide a written notice explaining the law’s protections during the Form I-9 process. The employee must acknowledge the notice in writing, and employers must keep a record of both the notice and acknowledgment.
These procedural requirements may create challenges for employers that use electronic Form I-9 or onboarding systems based on a standardized federal process. Employers should review their employment eligibility process to ensure these Colorado-specific requirements are incorporated.
What Colorado Employers Need to Know
If you hire or employ workers in Colorado, review your employment eligibility verification process to determine where these new state-specific requirements need to be added. Consider these steps:
- Review onboarding practices: Return original identification documents promptly after reviewing or copying them and make sure you don’t retain them longer than permitted.
- Add the required notice and acknowledgment: Incorporate Colorado’s notice requirements into your employment eligibility verification process and maintain the required records.
- Review your employment eligibility verification process: Confirm the required notice is provided and the written acknowledgement is obtained and retained as required.Â
Stay Ahead of Changing Compliance Requirements
These compliance changes may require updates to criminal screening policies, substance use testing, or employment eligibility verification processes. Reviewing compliance updates regularly can help you stay up to date on changes before they create gaps in your hiring process.
At InCheck, we can help you build a background screening program tailored to your hiring needs while providing helpful compliance support. Contact us today to learn more about partnering with InCheck for compliant screening practices.