Quarterly Compliance Update, Q4 2022

Quarterly Compliance Updates | November 29, 2022

SCREENINGS

Changes (Again) to Independent Contractor Definition

On October 11, 2022, the Department of Labor (DOL) issued a new proposed rule revising its guidance on classifying workers as independent contractors under the Fair Labor Standards Act (“FLSA”). This proposed rule seeks to rescind guidance issued by the DOL during the Trump administration which made it easier to classify workers are independent contractors.

Under the Proposed Rule, the DOL will consider six main factors in determining worker classification:

1. the nature and degree of the worker’s control over the work.
2. the worker’s opportunity for profit or loss based on personal initiative or investment.
3. investment by the worker and the employer.
4. the degree of permanence of the working relationship.
5. the extent to which the work performed is an integral part of the employer’s business; and
6. the degree of skill and initiative exhibited by the worker.

The public comment period will close on November 28, 2022, and is expected to take effect next year. Organizations who have been classifying their workers as independent contractors pursuant to the 2021 Rule should review the proposed rule.

California Banning Marijuana Testing in 2024

Gov Newsom signed Assembly Bill 1288 (AB-2188) to amend the state’s Fair Employment and Housing Act (FEHA) and make it an unlawful practice for an employer to discriminate against an adult applicant or employee based upon the “person’s use of cannabis off the job and away from the workplace.” The new law will take effect on January 1, 2024.

Fair Credit Reporting Act (FCRA) and Accuracy in Reporting

As lawsuits continue to strike the industry, accuracy of reporting, specifically ensuring that the information being reported about an individual is matched to the individual specifically, are increasingly occurring. When submitting a background screening, it is important to provide all legal names for an individual, including middle names when they exist, so that PlusOne can use as much information as we have available to confirm records and improve the accuracy of our reporting. Under 15 U.S. Code §1681e of the FCRA, we have an obligation as a consumer reporting agency to assure maximum possible accuracy and your assistance in this process is appreciated!

Annual Drug Testing Survey

A key partner to the screening industry, Current Consulting, has recently released the results of their 6^th Annual Drug Testing Survey. While some comments are not a surprise, it is always interesting to see some of the facts they have uncovered:

• While urine is the most common drug testing, with 87% of respondents using this modality, the industry is closely watching the evolution of oral fluid testing
• Marijuana legalization continues to impact organizations’ ability to drug test and many have, or are considering, dropping marijuana from their testing process
• 60% of survey respondents said drug testing is still very effective for their business – helping to improve safety, engage better quality individuals, maintaining a better company reputation and improving productivity

Annual FCRA Training Coming

Our annual online Fair Credit Reporting Act (FCRA) training will be coming in early 2023. Your Customer Success contact will reach out with details when the training is available.

This training covers the basics of the FCRA law, the responsibilities of requesting and using consumer reports as well as obligations for the destruction of information. PlusOne Solutions requests an annual certification from Customers to ensure their partnership in remaining compliant with FCRA obligations. Completion of this training constitutes certification and keeps Customer users updated on their obligations when using consumer reports.