2020 Regulatory and Legislative Round-Up

Employers operate in a complicated legal landscape, which is constantly shifting under their feet. Despite the challenges of COVID-19, federal, state, and local legislators and regulators continued to push through changes affecting the hiring process in various ways.

Here’s a look back at the events of a tumultuous year, seen through the lens of employment law.

COVID-19 Happened

The year kicked off with the U.S. Citizenship and Immigration Services (USCIS) introducing a new Form I-9 in January. But it wasn’t long before the COVID-19 pandemic compelled U.S. Immigration and Customers Enforcement (ICE) to offer and then extend Form I-9 compliance flexibility for employers with remote staff. The Federal Motor Carrier Safety Administration (FMCSA) also bowed to COVID-19 with a three-month waiver of pre-employment testing requirements.

At least everyone was adapting on the fly!

Ban the Box in the News

Probably the biggest legislative trend of late has been restricting employers’ use of criminal background information in hiring decisions. A number of states and localities added or adjusted their rules:

• Suffolk County, New York, enacted a Ban the Box law.
• St. Louis, Missouri did so as well.
• New York City included independent contractors and freelancers in its existing laws.
• Montgomery County, Maryland, expanded their law to cover nearly all businesses, while the Maryland General Assembly overrode a gubernatorial veto to Ban the Box statewide.
• Waterloo, Iowa, published resources to help employers understand and comply with their Fair Chance law. Kudos for offering that assistance!
• California updated the state’s Fair Chance Act to strengthen requirements regarding how employers assess conviction history and notify candidates of related decisions.
• Hawaii reduced the lookback period from 10 years to 7 years for felonies and 5 for misdemeanors.
• Georgia Governor Brian Kemp didn’t “ban the box.” But he did sign legislation allowing some individuals to have certain criminal convictions restricted from public access through a petition process. Yeah, it’s complicated.
• New Mexico’s expungement law went into effect as well.

Inquiries About Salary History Also Getting the Boot

In related news, asking applicants about salary history is on the outs in more jurisdictions:

• Philadelphia’s Wage Equity Ordnance is Being Enforced. This roll-out was delayed due to litigation on its constitutionality, which was resolved.
• Maryland joined the steady stream of cities and states prohibiting employers from inquiring about a candidate’s salary history.

We’ll see if this trend accelerates in the coming months.

Marijuana Complications

Marijuana was on the ballot (and won) in several states this fall, but that wasn’t the only activity. As we said in our two-part summary, The Hits Keep Coming…and Coming. Among our 2020 blog posts in this category were the following:

• New York State Court: Interactive Process Required for Medical Marijuana?
• Delaware State Court Reviews Use of Medical Marijuana & Workers’ Compensation. (Spoiler alert: the plaintiff did not receive compensation for medical marijuana.)
• Iowa Amends Medical Marijuana Law Providing Clear Employer Protections, which allow employers to implement policies restricting and even prohibiting marijuana use.
• The Supreme Court of Rhode Island found an employer justified in terminating a medical marijuana user for refusal to take a drug test.
• Virginia Bans Employer Inquiries into Marijuana Possession.

Stay Tuned

If you need to keep up on compliance issues, this blog is the place for you in 2021! Our compliance team members—the same experts responsible for updating our automated compliance engine—continually monitor developments across the country and post information here.

Plus, we host helpful webinars on key topics! (Spoiler alert: We launch the year with an in-depth 2021 outlook. News on that coming soon.)

Like all Asurint compliance updates, this round-up is intended for information only. Be sure to consult with qualified legal counsel to determine what, if any, changes may be needed at your organization.