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Verifile International Newsletter #30

28 Jun 2018

Verifile
newsletter 

June 2018  /  Issue #30

+44 (0) 1234 339 350 / www.verifile.co.uk / service@verifile.co.uk


Hello

Welcome to our June 2018 newsletter designed to help you stay up to date.

 


Verifile News

 

Right to Work in the UK Audits | 1st June 2018

For clients who order or are interested in ordering Right to Work Audits in the UK, we’d like to share some valuable information with you:-

Unlike all of our other services, this is an audit. What does that mean?

Every employer in the UK has a duty to review and make copies of all new employee’s original documents that prove their right to work in the UK. 

The Home Office maintains a list of acceptable documents, and so the document(s) seen in this face to face check must match exactly with an option on that list. The check must be carried out on or before the first day of work. Verifile recommends carrying it out at interview stage so there is sufficient time to resolve any issues with documents well ahead of the employee’s first day.

If an employer is found to be employing someone without the legal right to work in the UK and the employer cannot prove that they met Home Office requirements regarding Right to Work (UK), then the employer cannot claim ‘statutory excuse’ against payment of a civil penalty. Employers knowingly employing illegal workers may face up to 2 years imprisonment and/or an unlimited fine. 

How does Verifile help you fulfil your duties as an employer? 

With our expert knowledge of Home Office rules, Verifile can audit the employee’s document(s) to verify their right to work in the UK.  

Verifile will also:-

-   Advise you of any work restrictions e.g. student visa which allows only limited hours of work during term time.

-   Advise you of any required follow up e.g. checking university term dates.

-   Obtain ‘Positive Verification Notices’ when needed.

-   Prompt you a month before the document re-check is due (if required).

How can the service be used?

Verifile clients use our right to work in the UK service in two main ways:-

-   To audit all new employee documents (the service tends to be included in the screening package).

-   To audit new employee documents that are not British passports (the service tends to be ordered as an ‘add on’).

What results can I expect?

Every audit will have a full report statement, confirming whether ‘statutory excuse’ appears to have been obtained or not. If it has been met, then we will advise you of any work restrictions and if there is a need to re-check documents in the future. If it hasn’t, then we will provide guidance on what additional documents are required.

As it is an audit, Verifile won’t contact you asking for further documents when statutory excuse has not been obtained. You can review the additional original documents, make copies and add them to the employee’s file. If you would like us to review the new documents, then please place a new order.

Change to the service 

When a biometric visa has been presented to prove right to work in the UK, Verifile has previously requested a verification report from the Home Office. Unfortunately, due to a change to the Home Office request process, we will no longer provide this report. Although it isn’t a legal requirement to do so, verifying visas can identify fake documents. If you would like to go a step beyond your legal obligations and verify biometric visas presented to you, then your candidates can generate a security code. Using the security code and the biometric residence permit (BRP) number, you can access the verification report online

Interested in our Right to Work audit and want to find out more?

Please contact your Account Manager or the Client Service Team on +44(0) 1234 339 350.

 

Turnaround times for Basic England and Wales
Criminal Checks | 1st June 2018

We are aware of, and have been monitoring, recent delays in completing Basic England and Wales Criminal Checks through the Disclosure and Barring Service (DBS).

The latest update from DBS is that they have plans in place and are fully committed to being back to a 14 calendar day turnaround time (their agreed SLA) by the end of June.

 

New Cifas Principles | 1st June 2018

To coincide with GDPR, CIFAS has launched a new handbook outlining its eight principles of using Cifas databases and has issued new Terms and Conditions.

Cifas is the UK’s largest cross sector fraud sharing organisation, and Verifile can search its database on behalf of Cifas members.

Cifas will issue the new handbook and Terms and Conditions directly to its members. 

If you are interested in learning more about Cifas membership and how Verifile can search the database on your behalf, please contact your Account Manager or the Client Service Team on +44(0)1234 339 350. 

 

AccessNI and GDPR | 1st June 2018

AccessNI, the government agency responsible for criminal record certificates in Northern Ireland, has issued an updated Privacy Notice and Code of Practice. We recommend that clients ordering criminal record checks in Northern Ireland read the updated documents which can be found in the Help Guides section after logging in to the Verifile system. 


Bank Details | 1st June 2018

We have recently received a number of emails from supposedly genuine organisations asking Verifile to pay an invoice into a new bank account. Please be aware that we will never email our clients asking for payment into a different bank account or ask you to provide your log in details. If you ever receive an email like this, which is purportedly from Verifile, then please contact our Client Service Team before responding. 

 

Verifile International product changes

We would like to bring the following changes to our international product offering to your attention. If you would like us to send you current documentation for any of the checks listed, please request via service@verifile.co.uk

Austria Credit Check
This search is unavailable at present due to a process change at source which comes as a result of the new European GDPR legislation.

Bermuda Criminal Check
A new instruction and application form is now in place to reflect change in requirements.

Bulgaria Directorship Search
This search is unavailable at present due to a process change at source. 

Cyprus Credit Check
Reporting for Cyprus credit check has changed. This change is due to the new European GDPR legislation which affects data protection regulations in Cyprus. Going forward the Cyprus credit check will only report bankruptcy information. Bounced cheques, unpaid bills, and default information are no longer available for third party access.

Please note that we can still obtain directorship and shareholding information which, going forward, will be listed separately on the Directorship pricelist.

Ghana Criminal Check
This search is unavailable at present due to a process change at source.

Gibraltar Criminal Check
Gibraltar Police have now introduced a new ‘Vetting Application Form’. It is very similar to the old one, and authorities have stated that for a short while they will accept the old forms

Pakistan Criminal Check
Recently we have been advised that the Pakistani police have changed their internal processes and therefore the availability of these checks has changed. Currently we are able to offer criminal checks for individuals who have resided or are currently residing in Karachi, Hyderabad or Lahore. A new instruction is now in place to reflect this change.

Republic of Ireland Directorship Search
Going forward, our current and past directorships search will also include a search of disqualified and restricted directors register. 

Turkey Credit Check
This search is unavailable at present due to a process change at source which comes as a result of the new European GDPR legislation.

Ukraine Directorship Check
This search is unavailable at present due to a process change at source which comes as a result of the new European GDPR legislation.

International Update 

Below is a summary of the new checks that have become available to you since our last update, including criminal checks from Singapore and the United Arab Emirates, as well as an add-on search of the current debt enforcement information from Switzerland.

New Criminal Records Checks 

 

Country Type of Check Report Style
     
UAE* Police Clearance Certificate Certificate
     
UAE* Courts of First Instance Criminal Records Check Verifile Report
     
Singapore Limited Criminal Court Search Verifile Report

 

* Police Clearance Certificate is an official certificate issued to individuals without a criminal conviction. Fingerprints will be required for candidates who have resided in the UAE before 2009. If an individual has been convicted, instead of the certificate, the police will provide a case number. You will then have the ability should you wish of using this number to retrieve case details from the court by running an additional Criminal Records Search.

* Criminal Records Check is a database search using candidates name to establish if there are any court records held in that name by the First Instance Court from all seven emirates (regions). The Verifile Report will be based on this case number if the Police Clearance Certificate has already been completed or name if not.

New Credit/Financial Checks

Country Data included
   
Switzerland (Add-on search) Current Debt Enforcement Extract an additional search of Debt Enforcement Register with up to date information including claims, legal opposition, settled protests, seizures, open claims.  "This is an add-on check if information on the initial check is not up to date.

 

New Directorship Check

Country Data included
   
Cyprus Directorship / Shareholding

  

International news

Below are a selection of international headlines, click the buttons to view the stories in full for your region.

Worldwide

Worldwide

Read more

What can Employers do with regard to Background Checks and Inquiries?

Most Employers Optimistic about Hiring in Q2 2018, Finds Manpower Group

Africa

Africa

Read more

Businesses in Africa Prepare for EU General Data Protection Regulation 

Asia Pacific

 Asia Pacific

Read more

Asian Businesses Anticipate Hiring Spree in 2018


 Australia

Read more

Australian Government Releases Framework for Digital Identity

Fraudster who Lied about Education on CV to Land £120,000-A-Year Oil Exec Job Is Jailed

Privacy Laws and Data Breaches:  What HR Needs to Know

How the EU General Data Protection Regulation (GDPR) will Impact Australian Business?


 China

Read more

China Nearly Half of Employees are Planning to Change Jobs Within the Year


 Hong Kong

Read more

Hong Kong Issues EU Data Privacy Law Guidance on The Upcoming GDPR


New Zealand

Read more

New Zealand Privacy Laws Strengthened, Commissioner Given More Power 


 Singapore

Read more

Singapore Joins the APEC CBPR and Systems


Vietnam

Read more

 Vietnam's New Internet Law Will Make the Economy Lag 

Europe

 Europe

Read more

How Should HR Address "GDPR" Training?

It's Not too Late to Get Ready for the GDPR?

Top 10 Resources a GDPR Primer for Employees from the Front Line to the C-Suite

An Employee’s Right of Erasure Under The GDPR

GDPR HR Series Employee Information Notices About Personal Data - Your Key Questions Answered


 Germany

Read more

German DPA’s Publish Model GDPR Processing Records


 The Netherlands

Read more

GDPR Update: The Processing of Personal Data in the Employment Context


 Turkey

Read more

Turkey KVKK Regulation Consolidates SAR Procedure


 United Kingdom

Read more

Why Local Authorities Employing Ex-Offenders Is Good for Everyone

North America

 Canada

Read more

Canada: SCC In Stewart V. Elk Valley, Upholds Employer’s ‘No Free Accident’ Alcohol and Drug Policy

Ontario, Canada Introduces New Legislation Banning Compensation Questions

British Columbia Landlords Collect Unreasonable Amount of Personal Information from Tenants

Dave’s Not Here, Man: Termination for Smoking Dope at Work Upheld

Canada Adds 32,300 Full-Time Jobs, as Jobless Rate Stays at Record Low

Employer Provided a Negative Employment Reference – Is It Defamation?

Batten Down the Hatches: The GDPR is about to Blow


Bermuda & Cayman Islands

Read more

Protecting Personal Data in Bermuda and The Cayman Islands

A Paradise for Data Privacy Advocates – Bermuda’s Privacy Law Now In Full Effect


 United States

Read more

LEGAL

PETCO Job Applicants Reach $1.2M Background Back Check Class Action

When a Disclosure Form Must “Stand Alone”: Recent Cases Hold Companies Liable for Including Too Much on FCRA Disclosures 

Target Agrees to Review Screening of Job Applicants Amid Claims of Bias

Woman Steals ID to Get Six-Figure Job, But Can’t Do the Work

Budding Development: States Requiring Employers to Tolerate Medical Cannabis Use 

Criminal Record Screening Policies Continue to Raise Important Compliance Issues

The Truth Brings Relief Under FCRA 

Vitas Healthcare Corp. Employees Alleges Form Violates Fair Credit Reporting Act 

Illinois District Court Finds Job Applicant Has No Standing to Bring FCRA Adverse Action Claim Because Background Check was Accurate

9th Circuit Affirms Dismissal of FCRA Putative Class Action for Lack of Standing

Employers Prevail in FCRA Class Actions 

Wisconsin Commission Finds Employers Cannot Consider Expunged Convictions – Even if Substantially Related to the Job

Federal Court Rules That the EEOC Can Mess with Texas in Felon Hiring Lawsuit 

BAN THE BOX

Washington Ban the Box Law Limits Criminal Background Inquiries

San Francisco Amends Fair Chance Ordinance to Align with Portions of California’s New Statewide Ban the Box Law 

Westchester County Executive George Latimer Signs Fair Chance to Work Executive Order

Impending Necessary Ban-the-Box Updates for Criminal Record Inquiries in Massachusetts and San Francisco 

Washington State Enacts Fair Chance Act

DATA PROTECTION

Data Exposure by Vendor Leads to Two Million Dollar NERC Penalty for Utility

DRUG SCREENING

New Vermont Pot Law: What Employers Need to Know

Pennsylvania Medical Marijuana Statute Raises New Questions for Employers

Iowa Drug Testing Law Amended: Lawsuits on the Rise

California Cities Drop Thousands of Marijuana Convictions 

Changing Marijuana Laws and the Opioid Crisis are Prompting Employer Action

Fake Urine Ban Being Considered in Mississippi

Maine Recreational Marijuana Law Limits Drug Testing, Disciplinary Consequences Imposed by Employers 

The Americans with Disabilities Act and Medical Marijuana

Will California Employment Law Protect Medical Marijuana Users?

Employers Can Maintain a Drug Free Workplace in California Despite State Legalization of Recreational Marijuana

SALARY HISTORY

Swimming Against the Tide, Michigan Forbids Salary History Bans Statewide

Appeals Court Says Prior Salary Doesn’t Justify Pay Differences

To Boost Gender Pay Equity, Chicago’s Emanuel Bans City Departments from Asking Job Applicants for Salary History

SOCIAL MEDIA 

New Social Media Background Check Bill for Federal Workers and New Hatch Act Guidance


 

Worldwide

Worldwide

Read more

What Can Employers do with Regard to Background Checks and Inquiries?

A new document, the International Background Screening Essentials Guide, from the International Background Screening Resource Center, details how criminal records, medical history, drug screening, credit checks, social media, immigration status, and information found during job applications should be handled in Finland, India, Indonesia, Japan, Italy, Romania, and Singapore.

Read more

Most Employers Optimistic about Hiring in Q2 2018, Finds Manpowergroup

Employers around the world reported optimistic hiring outlooks in Q2 2018, according to the latest ManpowerGroup Employment Outlook Survey, which showed that employers in 43 of 44 countries plan to add staff. They survey showed that hiring confidence is strongest in Croatia, Taiwan, Japan, Hungary and the US. In the EMEA region, staffing levels are expected to grow in 25 of 26 countries surveyed, with the only negative outlook reported in Italy. Employers reporting the strongest outlooks are in Croatia. In the UK, employers recorded their most optimistic jobs forecast in over a year. In the Asia Pacific region, employers in all eight countries and territories expect staffing levels to increase with hiring strongest in Taiwan, followed by Japan. The most cautious outlook in is reported in China. In the Americas, positive outlooks were reported in all ten countries surveyed with employers in the US reporting the region's most upbeat forecast.

Read more

Africa & Middle East

Businesses in Africa Prepare for EU General Data Protection Regulation

The EU General Data Protection Regulation (GDPR) will have consequences for financial services organisations in Africa and non-compliance will expose those organisations to substantial fines and possible damage to reputation. Companies doing business in Africa should assess how the GDPR will affect their business models and data processing practices. In addition, South Africa’s Protection of Personal Information Act, 2013 (POPIA) also will come into effect this year. The two, however, vary in some instances. The GDPR deals with a subject’s right to data probability, while the POPIA does not, and it also requires data controllers to conduct data protection impact assessments, which is not required under POPIA. Similarities include the assignment of a Responsible Party, the right to erasure and the right to restriction of processing.

Read more

Asia Pacific

Asian Businesses Anticipate Hiring Spree in 2018

Half of employers across Hong Kong, Singapore, and China expect to hire staff in 2018, according to Links International’s Asia Salary Snapshot. Employers reported greater use of overtime – 33 percent saw it increase last year, compared to 27 percent a year earlier – and were more likely to make use of flexible staffing methods, including part-time work, job sharing and contractors. Regarding pay, China led the market in 2017, with 60 percent of all employees receiving a salary increase of more than 3 percent. According to the survey, in Hong Kong, multinational companies’ focus on building a strong employee value proposition has driven demand for strategic HR thinking, with HR analytics skills in strong demand.

Read more

Australia

Australian Government Releases Framework for Digital Identity

The Australian government has released the first component of the Trusted Digital Identity Framework for organizations seeking to provide identity services. The framework, whose development has been overseen by the Digital Transformation Agency, is intended to set standards for organizations providing digital ID for access to online services. The framework will help underpin the development of a federated digital identity system and provide the standards for the government's Govpass ID platform. The intention is allow individuals to only have to prove their identity once and then be able to use a digital ID across multiple government services.

Read more

Fraudster who Lied About Education on CV to Land £120,000-A-Year Oil Exec Job is Jailed

A £120,000-a-year oil executive has been jailed for lying about his academic qualifications on his CV. David Scott, 48, was sentenced to 12 months in jail after inventing three degrees and awarding himself first-class honors in petroleum engineering. He also claimed to have written an acclaimed academic paper. Scott was managing director of Mech-Tool, a world leader in heat and blast protection in the oil and gas sector, and was paid a salary of £120,000, a resettlement package, a £10,000 car allowance and bonuses. Scott claimed to have a master’s in business administration from Heriot-Watt, a Master of Science in petroleum engineering from Imperial College and a Bachelor of Science in Service Science from Imperial College.

Read more

Privacy Laws and Data Breaches: What HR Needs to Know

Deepti Wadhwa, senior associate, Australian Business Lawyers & Advisors, provides information on what HR professionals in Australia should know about the GDPR, including whether an organization is covered by the Privacy Act, the types of data that must be protected, what constitutes an eligible data breach requiring notification, steps to be taken if a serious data breach is found, and what could happen to an organization if it doesn’t comply with the new legislation.

Read more 

How the EU General Data Protection Regulation (GDPR) will Impact Australian Business?

The General Data Protection Regulation (GDPR) will overhaul data protection throughout the European Union when it comes into effect May 25. A large number of Australian businesses could be affected, therefore, it is important to become familiar with significant elements of the GDPR. The GDPR is similar to certain principles under the Privacy Act 1988 (Cth) (Privacy Act), but it gives more power to individuals regarding the use of their personal information. Individuals have rights regarding data portability, the right to be forgotten, the right to restrict processing and the right not to be subject to decisions based solely on automated processing. Australian businesses who must be in compliance are those that have an establishment in the EU; offer goods or services in the EU or monitor the behavior of individuals in the EU. Those not in compliance could face hefty penalties.

Read more


China

China Nearly Half of Employees are Planning to Change Jobs Within the Year

Nearly half of employees in Mainland China plan to change employers within the year and 43% are currently open to an offer, according to research from Hays China. The research also showed that 19% of workers in China plan to change employers within six months with 28% already on the hunt for a new job. Sixty-five percent of candidates said that salary or benefit packages was the top reason for looking for a new role, followed by lack of career progression (60%) and a desire to seek new challenges (43%). Regarding salary expectations, 57% said they were unhappy with their compensation & benefits package while 43% were happy. The majority, or 74%, did not ask for a pay rise in the last year, while 9% asked for a pay rise but were not successful, and 17% asked and received a pay rise. In 2018, 85% expect a pay rise of more than 6%.

Read more


Hong Kong

Hong Kong Issues EU Data Privacy Law Guidance on ohe Upcoming GDPR

he Hong Kong Office of the Privacy Commissioner for Personal Data recently published compliance guidance on the upcoming General Data Protection Regulation (GDPR), which examines the extra-territorial effect on Hong Kong companies. This includes those that have establishments in the European Union (EU), those that offer goods and services in the EU and those that monitor the behavior of individuals in the EU. Of particular importance is the compliance guidance examination of the accountability principle in the form of a data protection officer (DPO) and ongoing data privacy management tools under the GDPR, which are not explicitly provided for under the Personal Data (Privacy) Ordinance (PDPO), but will become a mandatory requirement under the GDPR.

Read more


New Zealand

New Zealand Privacy Laws Strengthened, Commissioner Given More Power

New Zealand’s Privacy Commissioner has introduced stronger privacy laws and stronger powers for its staff, citing the fact that the Internet, new technologies and social media platforms have transformed the way personal information is used, stored and transmitted. The bill repeals and replaces the 25-year-old Privacy Act to take account of the changes and bring in new ways to enforce privacy principles. The main changes include mandatory reporting of privacy breaches that pose a risk of harm to people must be notified to the Privacy Commissioner and to affected individuals; the Privacy Commissioner will be able to issue compliance notices that require an agency to do something, or stop doing something, to comply with privacy law. New Zealand agencies will be required to take reasonable steps to ensure that personal information disclosed overseas will be subject to acceptable privacy standards; and more.

Read more 


Singapore

Singapore Joins the APEC CBPR and PRP Systems

Singapore has joined the APEC Cross-Border Privacy Rules (CBPR) and Privacy Recognition for Processors (PRP) systems. Singapore becomes the sixth APEC economy to join the CBPR system, joining the U.S., Mexico, Canada, Japan and South Korea, and the second APEC economy to join the PRP system, after the U.S. The decision to join will mean that once the CBPR are fully operationalized in Singapore, through a local Accountability Agent that will certify companies, Singapore-based organizations will be able certify to the CBPR and rely on them as a cross-border data transfer mechanism. The APEC CBPR system is a regional, multilateral cross- border data transfer mechanism and an enforceable privacy code of conduct developed for businesses by the 21 APEC member economies.

Read more


Vietnam

Vietnam’s New Internet Law will make the Economy Lag

Vietnam’s Ministry of Public Security (MoPS) believes that a draft cybersecurity law that requires all foreign online service providers (including Facebook, Google and Twitter) to store their Vietnamese users’ data exclusively in Vietnamese data centers will pose serious threats to economic development. Specifically, the department argues that given Vietnam’s relatively less- developed IT infrastructure and workforce, data localization would increase the chances of security breaches. In addition, the department argues that data localization would be detrimental to data privacy, as government agencies could force tech firms to provide them with users’ personal information. Even more, it notes that the proposed mandate would result in higher costs of doing business and an even more restricted flow of information.

Read more 

Europe

Europe

How Should HR Address 'GDPR' Training?

According to IT Governance’s 2017 GDPR Report, less than 10% of organizations have provided GDPR staff awareness training to all employees. The report also showed that only 53% of organizations are planning to provide GDPR staff awareness training in the future. General training on how to protect personal data should be rolled out to all employees, but those in more sensitive job roles or with more privileged access to data, such as HR, should be given more dedicated training. For example, those employees that manage client data should have specific guidance compared to those handling internal employee data. Even more, HR and legal teams should ensure that their privacy policy is adopted and followed by all employees, including managers.

Read more

It’s Not Too Late to Get Ready for the GDPR

With five weeks until the new data regulation comes into effect, Geetika Bansal is a senior associate, and Khurram Shamsee a partner, in the employment and pensions group at DAC Beachcroft, offer last-minute advice for HR professionals, and suggest that “last minute housekeeping” should focus on carrying out an audit of how the personal data of job applicants, employees and contractors is processed; removing consent clauses from employment contracts; updating data privacy notices; and reviewing the contract terms with third parties, such as payroll or benefits providers. The authors say that for many employers, GDPR “will be a work in progress and should not cause undue concern; it is highly unlikely that the Information Commissioner's Office will be interested in using its resources to pursue businesses that are actively engaging with their GDPR obligations and taking steps to ensure they are compliant.”

Read more 

Top 10 Resources - A GDPR Primer for Employees from fhe Front Line to The C-Suite

Businesses around the world are shifting their approaches to data security, with the effective date of the European Union’s (EU) General Data Protection Regulation (GDPR), set for May 25, 2018. Anyone doing business in the EU will be impacted, including companies with websites that are available in Europe. There are several resources that serve as a GDPR primer for employees, including the European Commission’s GDPR Infographic, which is one of the clearest and most readable overviews of the regulations. Forrester’s GDPR episode of the “What It Means” podcast is worth a listen and the GDPR Report is a great place to learn about various new laws under the Right to be Forgotten (RTBF).

Read more 

An Employee’s Right of Erasure under the GDPR

The implementation of the European Union’s General Data Protection Regulation (GDPR) introduces the concept of a “right of erasure” i.e. a ‘right to be forgotten’. Under the GDPR, an employee will have a right to have his/her data erased and no longer processed. A few practical examples of where an HR department may be compelled to erase employee data include collecting data about an employee to administer benefits; collection of data during a hiring process but not being able to demonstrate grounds for continuing to process it; collecting data on an employee’s past address but the employee has since provided new information; and more.

Read more 

GDPR HR Series Employee Information Notices about Personal Data – Your Key Questions Answered

Failure to comply with the upcoming General Data Protection Regulation (GDPR) could result in significant fines and disruption to business. The recent blog from Bryan Cave LLP discusses privacy notices aimed at staff. It is not enough for businesses to continue giving staff a privacy notice under existing data protection laws. Businesses should make sure that privacy notices are concise, understandable, accessible and use clear and plain language. In order to ensure compliance with the requirement that notices be concise, businesses should consider whether it is appropriate to have different, tailored notices for different types of individual. Article 13 of the GDPR requires that various types of information be given to data subjects, including name and contact details; purposes and legal basis of processing; and the right to lodge a complaint with a data protection authority.

Read more  


Germany

German DPA’s Publish Model GDPR Processing Records

Germany’s Conference of Independent Federal and State Data Protection Authorities have released a pair of documents to help companies comply with Article 30 of the EU General Data

Protection Regulation. The two “Model Processing Records” are designed to help both controllers and processors in their data processing procedures to ensure compliance with Article 30 of the GDPR. The DSK also published “Guidelines for Article 30 Processing Records,” a resource containing information on what German DPAs expect when the GDPR goes into effect, covering topics such as language, cross-references to other internal documents, and a recommendation to keep a list of internal policy documents.

Read more


The Netherlands

GDPR Update: The Processing of Personal Data in the Employment Context

Recent technologies can be helpful in detecting or preventing the loss of company property, improving the productivity of employees and protecting the personal data for which the data controller is responsible, but with it also comes a significant privacy and data protection risk. Companies should consider conducting an assessment concerning the balance between the legitimate interest of the employer to protect its business and the privacy of the employees. Article 88 of the General Data Protection Regulation (GDPR) provides that European Union (EU) member states may provide for more specific rules to ensure protection. Employers must inform employees on the existence of any monitoring systems and, where online tools are used to process personal data, should consider enabling employees to designate certain private spaces to which he or she may not gain access under any circumstances.

Read more


Turkey

Turkey KVKK Regulation Consolidates Sar Procedure

Naz Degirmenci and Zeynep Ünlü, Associate Attorney and Senior Managing Counsel respectively at BTS & Partners, discuss how Turkey’s supplementary regulation to the Data Protection Law specifies the types of information that must be included by a data subject, the content to be provided by a data controller when responding to a subject access request (SAR), and the time limit for the data controller to respond to an SAR. In addition, they note how the Regulation provides that SARs be submitted in Turkish, and how fees can be charged. Degirmenci and Ünlü recommend that organizations appoint a contact person regarding data protection issues that internal governance procedures be prepared with regard to the handling of SARs as well as retention policies.

Read more


United Kingdom

Why Local Authorities Employing Ex-Offenders is Good for Everyone

Bristol City Council has become the first local authority in the UK to join Ban the Box, a Business in the Community campaign removing barriers to employment for people with criminal convictions. There are more than 11 million people in the UK with a criminal conviction and while the clear majority (70%) are handed down as fines, many employers are reticent to hire them.

According to the campaign, doing so means employers are missing out on skilled and talented people, people who have made a mistake and are trying to turn their lives around find are unable to secure work, making them more likely to fall back into crime. In Bristol, candidates are no longer asked about criminal convictions on their application forms for any jobs with the council that don’t require a Disclosure and Barring Service (DBS) check.

Read more  

North America

Canada

Canada: SCC in Stewart V. Elk Valley, Upholds Employer’s ‘No Free Accident’ Alcohol and Drug Policy

In June, the Supreme Court of  Canada released a landmark decision in Stewart v. Elk Valley Coal Corp. (2017 SCC 30), reinforcing the right of employers to take proactive risk mitigation and management measures through the adoption of alcohol and drug polices to ensure workplace safety. Following a workplace accident, plaintiff Ian Steward tested positive for cocaine. During an investigation meeting with his employer following the positive test, he stated that he was addicted to the drug. Stewart worked in a safety-sensitive mine operated by defendant Elk Valley Coal Corporation/Cardinal River Operations, which had an alcohol and drug policy that required employees to disclose any addiction issues before the occurrence of an alcohol or drug-related incident or face termination. The Alberta Human Rights Tribunal held that, while Steward suffered from a disability, named addiction, he was terminated for breaching the Policy, not his addiction (2012 AHRC 7).

Read more

Ontario, Canada Introduces New Legislation Banning Compensation Questions

Although compensation history is often used as a guide in determining an applicant’s salary upon hire, evidence suggests that this process may negatively impact women, because in many industries, women are still being paid less than men for doing the same job. In an effort to combat gender discrimination and increase transparency during this process, the Ontario government introduced The Pay Transparency Act (the PTA), which establishes requirements concerning disclosure of compensation particulars of employees and prospective employees. If passed, the PTA, which could go into force on Jan. 1, 2019, will prohibit employers from asking candidates about their compensation history, along with other requirements.

Read more

British Columbia Landlords Collect Unreasonable Amount of Personal Information from Tenants

British Columbia’s acting information and privacy commissioner has found that landlords there collect too much personal information from prospective tenants. Drew McArthur reach the conclusion after conducting an investigation that included collecting residential tenancy application forms from eight for-profit and five non-profit landlords, and rental management companies. The investigation revealed that landlords were requesting marital status, sex, age, date of birth and social security numbers from tenants. In one instance, the landlord demanded a credit check, even though they offered to pay one year’s rent in advance, and another cited the “Personal Information Reporting Act,” which does not exist.

Read more

Dave’s Not Here, Man: Termination for Smoking Dope at Work Upheld

The arbitrator in a case in which two janitors were caught smoking pot on the job at a University stressed that each case involving drug use at work must be determined at its own specific facts, context and merits. While he agreed with the Union, who argued on the employees’ behalf that the positions were not safety-sensitive, he ultimately agreed with the employer that the grievors’ lack of candour and their attempts to mislead the employer destroyed the trust necessary for  them to continue working in an unsupervised position. Even though the federal government’s plan to legalize recreational marijuana will come into effect Aug. 1, 2018, employers should implement workplace policies prohibiting employees from being or becoming impaired at work, particularly in safety-sensitive positions.

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Canada Adds 32,300 Full-Time Jobs, as Jobless Rate Stays at Record Low

The Canadian economy delivered 32,300 net new jobs last month as Canada generated a rush of full-time work that helped hold the national unemployment rate at a record low. Statistics Canada says the jobless rate stayed at 5.8% in March for a second consecutive month, and for the third time since December. The labor force produced 68,300 full-time positions last month and shed 35,900 part-time jobs. However, the survey shows that 19,600 of the new employee positions were created in the public sector, while the number of private-sector workers declined by 7,000. The report also found that average hourly wage growth strengthened in March to 3.3 percent, up from 3.1 percent the previous month.

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Employer Provided a Negative Employment Reference – Is it Defamation?

In the case of Papp v. Stokes Economic Consulting Inc. and Ernest Stokes, Papp was a Staff Economist for the Stokes, but eventually was laid off due to a work shortage. The company agreed to provide a reference for any upcoming job opportunities, but when Papp learned he was the number-one candidate for a position with the Yukon Government, a negative reference resulted in him not being offered the position. At trial, the court ruled that, while the statements were defamatory, they were not made with malice nor were they reckless. As a result, Mr. Stokes was not liable for damages for defamation. In general, qualified privilege is the reason references are protected from claims of defamation, provided the reference was not malicious nor untrue.

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Batten Down the Hatches: the GDPR is About to Blow

Canadian companies who are gearing up for the May 25, 2018, General Data Protection Regulation (GDPR) should begin to consider whether the GDPR applies to their data processing activities in Canada. It is also important for companies to assess the extent to which the GDPR applies to them. For example, the level of fines associated with violating certain articles will depend on the size of the organization, which specific provisions were contravened and a number of prescribed aggravating and/or mitigating factors. If its processing activities are large-scale, those companies will be required to designate a Data Protection Officer (DPO). And finally, companies should assess how GDPR requirements differ from their existing obligations under Canadian private sector privacy laws.

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Bermuda

A Paradise for Data Privacy Advocates – Bermuda’s Privacy Law Now in Full Effect

Bermuda’s Personal Information Protection Act (PIPA), passed July 27, 2016, shares many of the more stringent requirements and protections with Europe’s impending General Data Protection Regulation (GDPR). There are, however, important differences between the two. Personal Information (PI) is defined as “any information about an identified or identifiable individual.” For the GDPR, personal data is “any information relating to an identified or identifiable natural person” and the definition of personal information varies by jurisdiction in the United States. PIPA applies certain key restrictions on the “use” of this broadly defined personal information, from the permitted use of personal information and the transfer of personal information outside of Bermuda. It also requires that organizations implement adequate safeguards to prevent data loss and unauthorized access. Those who do not comply could face fines not exceeding $250,000.

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Cayman Islands

Protecting Personal Data in Bermuda and the Cayman Islands

The Cayman Islands and Bermuda have recently passed comprehensive data protection laws. Cayman’s Data Protection Law was passed in March 2017 and will be enforced beginning in January 2019, while Bermuda’s Personal Information Protection Act will be enforced beginning in December 2018. Both laws support a growing expectation from international businesses and their clients that organizations operating in offshore centers have in place extensive data protection compliance policies backed up by robust data privacy legislation. Drafted around a set of internationally recognized privacy principles, the new laws will provide a framework of rights and duties designed to give individual data subjects greater control over their personal data and, once in full force, will stand as the most comprehensive data protection laws in the region.

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United States

LEGAL

PETCO Job Applicants Reach $1.2M Background Back Check Class Action 

Petco and two job applicants are seeking preliminary approval of a $1.2 million settlement in a lawsuit claiming the company’s background check policies are unlawful. After nearly two years, the job applicants have reached settlement discussions for their Petco background check class action lawsuit. Plaintiffs Jacklyn Feist and Angelica Zimmer said that the proposed deal provides “relief.” The lawsuit was filed in a California state court in May 2016 for claims that the company violated the Fair Credit Reporting Act (FCRA) by not sufficiently notifying job applicants that the company would conduct background checks of applicants. The company allegedly “buries” the background check notification in the fine print of its online application. 

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When a Disclosure Form Must “Stand Alone”: Recent Cases Hold Companies Liable for Including Too Much on FCRA Disclosures 

Recent cases involving the Fair Credit Reporting Act (FCRA) emphasize the importance of employers allowing disclosures to obtain background checks from consumer reporting agencies to “stand alone” from every other document. While the FCRA allows the disclosure form to also include an authorization, courts have recently cracked down on employers who include anything extraneous. In Syed v. M-I, Ltd. Liab. Co., 853 F .3d 492 (9th Cir. 2017), the Ninth Circuit of Appeal held that the inclusion of a liability waiver in the same document at the FCRA disclosure violated the “stand alone” requirement. In another case, Petco Animal Supplies, Inc., asked a Federal Court in the Southern District of California to approve a class-wide settle of a 2016 lawsuit based on allegations that its web-based application contained a FCRA disclosure containing a broad authorization of “any person” to provide “any and all information” to the consumer reporting agency, in addition to information relating to the laws of seven different states. 

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Target Agrees to Review Screening of Job Applicants Amid Claims of Bias

In early April, Target agreed to revise guidelines for how it screens people seeking jobs at its stores. The step is intended to quell complaints that the retailer discriminates against black and Hispanic applicants with criminal records that can include offenses too minor or old to affect their performance as employees. According to Sherrilyn Ifill, president and director-counsel at the National Association for the Advancement of Colored People (NAACP) Legal Defense and Education Fund, said that the background check policy was not compliant with best practices and didn’t give applicants a fair chance at a good job. The agreement not only addresses a series of complaints filed with the Equal Employment Opportunity Commission (EEOC) by Carnella Times, but also seeks to resolve a potential class action filed in Federal District Court in Manhattan by her legal defense, as well. The company agreed to contribute $3.7 million to a settlement fund.

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Woman Steals ID to Get Six-Figure Job, But Can’t Do the Job

Forty-one-year-old Cindy White of Louisiana was found guilty of identity theft after she used another woman’s ID to get a job at Diversified Food and Seasonings and was promoted to a senior position with a six-figure salary. Her fraud was exposed after the company realized she was having trouble with jobs that should have been within her claimed ability and was delegating much of her work. Investigators found that she copied another woman’s resume from LinkedIn and stole her identity numbers from another website.

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Budding Development: States Requiring Employers to Tolerate Medical Cannabis Use 

Changes in cannabis laws are causing some employers to think twice before denying employment to individuals because they tested positive for the use of marijuana that they are ingesting for state-authorized medical reasons. In Arizona, an employer may not discriminate because of a person’s status as a cannabis cardholder, unless failure to do so would cause an employer to lose certain benefits under federal law. Delaware law is similar, however an employer can prohibit the ingestion, possession, or impairment of marijuana in the workplace. Employers in Maine cannot test applicants for cannabis unless they submit a request to the State of Maine that that request is approved. Employers there also cannot use a positive test for cannabis to prove that an employee is impaired by cannabis. Other states with similar laws include Minnesota, New York and California.

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Criminal Record Screening Policies Continue to Raise Important Compliance Issues

A recent settlement by Target reinforces the importance of employers to be vigilant with all applicable laws pertaining to criminal record screening policies. Plaintiffs in the case allege that Target’s criminal-record-screening policies had a disparate impact on African-American and Latino job applicants for store positions. The claim centered on the standards for assessing ex-offender job applicants as eligible or ineligible for employment. Over a period of several years, the parties negotiated a pre-litigation class-wide settlement that must be approved by a federal court. In early April, a settlement submitted by the plaintiff’s attorneys would require programmatic relief in addition to a monetary payment.

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The Truth Brings Relief Under FCRA 

In Ratliff v. A&R Logistics, Inc., the plaintiff claimed A&R denied him a job based on a background check without the appropriate adverse action process. Ratliff alleged that the company failed to properly provide pre- and post-adverse action as set forth under the Fair Credit Reporting Act (FCRA) guidelines. A&R moved to dismiss, arguing that the plaintiff lacked Constitutional standing. The Northern District of Illinois agreed after it first considered whether an “informational injury” occurred. Ratliff failed to allege any inaccuracies that could cause concrete harm, therefore, no injury existed and the decision stood.

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Vitas Healthcare Corp. Employees Alleges Form Violates Fair Credit Reporting Act

Vitas Healthcare Corp. job applicant Jazzina Williams alleges she was provided a facially invalid authorization form when she applied for employment. The complaint states that the plaintiff signed background investigation authorization and release forms given to her by the company in April 2016, but she alleges the form is unlawful because it includes a clause requiring applicants to “release from liability all persons, companies and governmental or other agencies disclosing such information.” Williams has requested a trial by jury and seeks judgment against the defendant.

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Illinois District Court Finds Job Applicant Has No Standing to Bring FCRA Adverse Action Claim Because Background Check was Accurate 

The District Court for the Northern District of Illinois recently confirmed that even if an employer fails to follow the proper procedure, an applicant may not have standing to bring an adverse action claim if the background check as issue is accurate. In Ratliff v. A&R Logistics, Inc., plaintiff Jerome Ratliff, Jr., claimed that the company declined to hire him based on his background check without following a proper adverse action process. A&R moved to dismiss the complaint on the ground that Ratliff had not suffered any injury-in-fact. Because Ratliff failed to allege that the background check on him contained any inaccuracies, he could not show any “informational injury.”

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9th Circuit Affirms Dismissal of FCRA Putative Class Action for Lack of Standing

The Ninth Circuit has ruled that the plaintiff in Bassett v. ABM Parking Services, Inc., et al., Case No. 2:16-CV-00947 (9th Cir. 1018) failed to allege a concrete injury-in-fact sufficient for Article III standing in a suit alleging a violation of the Fair Credit Reporting Act (FCRA). The panel applied Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), in which the Supreme Court emphasized Article II standing requires a concrete injury even in the context of a statutory violation. The panel also discussed the legislative history of the FCRA requirement to redact credit card expiration dates and concluded that the congressional judgment weighted against the plaintiff because Congress’ findings showed that a disclosed expiration date by itself posted minimal risk. And finally, the panel found the plaintiff’s alternative statutory theories of injury to be unpersuasive.

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Employers Prevail in FCRA Class Actions

In Lewis v. Southwest Airlines, the plaintiff asserted classwide and “willful” violations of the Fair Credit Reporting Act’s disclosure requirement and corresponding violations of California’s fair credit reporting act. The court reasoned that the district courts have considered whether extraneous information in an FCRA disclosure constitutes a willful violation, but have provided inconsistent and even conflicting answers. In Branch v. GEICO, GEICO did not defeat a pre-adverse action claim on summary judgement, but did beat the plaintiff’s motion to certify a class action. The plaintiff alleged that GEICO took an adverse action when it assigned the plaintiff’s background check a preliminary grade of “Fail” – based on GEICO’s “Adjudication Process.” And finally, in Culberson v. Walt Disney, Culberson involved allegations that a pre-notice “coding” constituted an adverse action and a “willful” violation of the FCRA. The court relied on the opinion in Lewis v. Southwest, holding that Disney did not act “objectively unreasonable.” The law is dynamic and employers should continue to monitor case law and regularly developments.

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Wisconsin Commission Finds Employers Cannot Consider Expunged Convictions – Even if Substantially Related to the Job 

The Wisconsin Fair Employment Act prohibits employers from taking adverse employment action against an applicant or employee because of the individual’s conviction record, unless the conviction is “substantially related” to the position. Wisconsin law permits certain offenders who commit crimes before they reach the age of 25 to have their convictions expunged. In Staten v. Holton Manor (January 30, 2018), an applicant applied for a job as a certified nursing assistant at a skilled nursing facility. She disclosed on her application that she had been convicted multiple times, but that one of the convictions had been expunged. When she was not hired, the individual filed a charge of discrimination alleging the employer had violated the Wisconsin Fair Employment Act. The Wisconsin Labor and Industry Review Commission concluded that the employer could not rely on the expunged conviction when arguing that the individual’s conviction record was substantially related to the job. 

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Federal Court Rules That the EEOC Can Mess with Texas in Felon Hiring Lawsuit 

A recent showdown between the State of Texas and the Equal Employment Opportunity Commission (EEOC) has signaled to employers that the Commission’s position on the unlawful nature of categorical bans on the hiring of felons remains viable. In State of Texas v. EEOC, No. 5:13-CV-255, 2017 U.S. Dist. LEXIS 30558 (N.D. Tex. Feb. 1, 2018), Texas argued that the EEOC’s Guidance directly interfered with its authority to impose categorical bans on hiring felons and to be able to discretionarily reject felons for certain jobs. The EEOC argued that the Guidance had not yet been enforced against Texas, and therefore, the issue was not ripe for adjudication. The Court granted the EEOC’s motion for summary judgment, and denied Texas’s motion for summary judgment and request for declaratory relief.

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BAN THE BOX

Washington Ban the Box Law Limits Criminal Background Inquiries 

Washington will become the next state to implement “ban the box” legislation in June. Governor Jay Inslee signed into law the Washington Fair Chance Act (WFCA) on March 13, which prohibits inquiries regarding applicants’ conviction histories until the employer has determined the applicant is “otherwise qualified” for the position. Some employers are excluded, including those hiring a person who will or may have unsupervised access to children under the age of 18 or a vulnerable adult or person, and any employer, including a financial institution, who is expressly permitted or required under any federal or state law to inquire into, consider or rely on information about an applicant’s or employee’s criminal record for employment purposes; among others. Maximum penalties begin with a fine of $750 for first violations and $1,000 for each subsequent violation.

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San Francisco Amends Fair Chance Ordinance to Align with Portions of California’s New Statewide Ban the Box Law

In early April, San Francisco amended its Fair Chance Ordinance to align with California’s new ban-the-box law, which requires employers with five or more employees to wait until after a conditional offer of employment is made to inquire about an applicant’s criminal history, conduct an individualized assessment of an applicant’s conviction, notify the applicant of any potential adverse action based on the conviction history, and, after waiting the requisite time period, notify the applicant of any final adverse action. The City and County of San Francisco Board of Supervisors approved amendments to its Fair Chance Ordinance (Article 49), which include reducing the number of employees needed to qualify as a covered employee from 20 to five and requires employers to wait until after a conditional offer of employment is made before inquiring about criminal history. Violations that occur after the effective date of the amended Ordinance could include increased penalties of up to $2,000 over multiple offenses.

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Westchester County Executive George Latimer Signs Fair Chance to Work Executive Order 

County Executive George Latimer recently signed an Executive Order that will help put Westchester residents back to work. The “Fair Chance to Work” Executive Order prohibits the County from inquiring about past convictions during the initial application process. It is believed the Executive Order will be good for the county’s economy by increasing income tax contributions and consumer activity and boosting sales tax revenues. It in no way prohibits background checks or fingerprinting from being performed following the submission of an applicant for employment, especially for those jobs that involve children, seniors and other vulnerable positions. 

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Impending Necessary Ban-the-Box Updates for Criminal Record Inquiries in Massachusetts and San Francisco 

Massachusetts enacted the Criminal Offender Record Information (CORI) Reform Act that includes a “Ban the Box” component. Recently, Gov. Charlie Baker signed amendments that place further restrictions on employers that inquire about prior criminal records. Taking effect Oct. 13, 2018, the important changes include: a provision that an employer shall not inquire into convictions for misdemeanors where the date of the conviction occurred three or more years from the date of application, unless there was an intervening conviction; the prohibition of an employer from asking an applicant about “a criminal record, or anything related to a criminal record, that has been sealed or expunged,” and a required application statement for those employers who seek “information concerning prior arrests or conviction of the applicant.” An amendment to San Francisco’s “Ban the Box” law also further restricts employees from considering criminal record information. 

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Washington State Enacts Fair Chance Act

The Washington Fair Chance Act (HB 1298), which becomes effective in June 2018, prohibits employers from obtaining any information about an applicant’s criminal record until after the employer initially determines that the applicant is otherwise qualified for the position. It also makes it unlawful for employers to advertise employment openings in a way that discourages those with criminal records from applying and to implement a policy or practice that automatically or categorically excludes individuals with a criminal record prior to an initial determination. The Act emphasizes public education, and bars employees from suing under the Act for damages, while excluding certain individuals and employers, such as those who will or may have unsupervised access to children or vulnerable adults

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DATA PROTECTION

Data Exposure by Vendor Leads to Two Million Dollar NERC Penalty for Utility

A public filing by the North American Electric Reliability Corporation (NERC) on Feb. 28 reported that an unidentified electric utility agreed to pay a $2.7 million penalty to resolve violations of the Critical Infrastructure Protection (CIP) reliability standards related to the exposure of the sensitive data. The violations of the case stemmed from improper data handling practices by the utility and its vendor, leading to the exposure of sensitive utility data on a public server. According to the Notice of Penalty, a third-party vendor improperly copied sensitive data from the utility’s network to its own network environment.

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DRUG SCREENING

New Vermont Pot Law: What Employers Need to Know 

People 21 or older in Vermont soon will be legally permitted to possess limited quantities of marijuana and marijuana plants. Possession includes up to one ounce of marijuana or 5 grams of hashish and two mature or four immature plants. The law does not affect an employer’s ability to enforce rules on smoking or use of the drug in the workplace. The law does, however, prohibit the consumption of marijuana in a “public place” and doesn’t protect people who possess or consume marijuana from laws related to driving under the influence or consuming marijuana while driving. Businesses should consider drafting policy language that clarifies the company’s position on marijuana use.

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Pennsylvania Medical Marijuana Statute Raises New Questions for Employers

Pennsylvania employers have joined those in a number of states learning how to handle employees who test positive for medical marijuana after the state opened its first medical marijuana dispensary. Pennsylvania recently passed a medical marijuana statute that contains a specific caveat barring employers from “discriminating” against employees who use medical marijuana with a legal state certificate. The Pennsylvania Medical Marijuana Act (PMMA) contains sanctions that prohibit employers from taking adverse employment action against employees with proper certification. No federal court has forced an employer to accommodate the use of a drug that remains illegal under federal law, but two recent decisions have caused businesses to doubt whether federal law under the Americans with Disabilities Act (ADA) is sufficient to dismiss the state law discrimination claim.

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Iowa Drug Testing Law Amended: Lawsuits on the Rise

Iowa’s 10-page drug testing statute, enacted more than 30 years ago, includes provisions addressing permissible types of tests, written notice requirements, rehabilitation for positive alcohol test results, split-specimen testing, and mandatory supervisor training, among other things. The Governor recently signed an amendment into law that will allow employers to take action based on an alcohol test result of .02 grams of alcohol per two hundred ten liters of breath. In 2017, an amendment clarified that hair follicle testing is appropriate for pre-employment drug testing, which has led to an increase in lawsuits alleging violations of the statute. Some allege claims for wrongful discharge in violation of public policy, while at least one regarded the method of delivery of a positive test result notice.

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California Cities Drop Thousands of Marijuana Convictions

San Francisco and San Diego are moving to erase thousands of marijuana convictions en masse, which could be life-changing for some and helpful, especially, to minorities. San Francisco District Attorney George Gascon said he aims to “fix the harm that was done not only to the entire nation but specifically to communities of color.” Nine states have marijuana laws that allow people to clear or modify their records, according to the National Conference of State Legislatures.

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Changing Marijuana Laws and the Opioid Crisis are Prompting Employer Action

Each year, the Society for Human Resource Management (SHRM) holds a panel on state and national drug laws at its employment law and legislative conference. One attendee, an attorney at Sheehan Phinney Bass & Green PA, said he has become known as a “pot lawyer” thanks to the wave of marijuana laws and court precedent that has forced employers to reconsider their drug and alcohol policies and drug testing procedures, while the opioid crisis continues to drain employers of talent and money. In fact, he said, 28.6 million people used an illicit drug in the prior month and 24 million of those had used marijuana.

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Fake Urine Ban Being Considered in Mississippi

The Mississippi Urine Trouble Act, sponsored by Republican State Representative Andy Gipson, would ban the sale or use of synthetic human urine for the purposes of defrauding a drug test, including one for employment. A box of fake urine can be purchased at truck stops and novelty shops throughout the state, often labeled “fetish urine,” and includes instructions on how to heat up the concoction. Those caught using the fake liquid could face up to six months in jail, a $1,000 fine or both.

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Maine Recreational Marijuana Law Limits Drug Testing, Disciplinary Consequences Imposed by Employers

Effective February 1, 2018, a provision of Maine’s recreational marijuana law prohibits employers from taking adverse employment actions for off-premises marijuana use. One of the provisions provides that employers are not required to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or growing of marijuana in the workplace. In addition, employers are permitted to enact and enforce workplace policies restricting the use of marijuana by employees and discipline employees who are under the influence of marijuana in the workplace. The law does, however, prohibit employers from “refusing to employ a person 21 years of age or older solely for that person’s consuming marijuana outside of the … employer’s property.”

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The Americans with Disabilities Act and Medical Marijuana

While the majority of states have legalized some form of medical marijuana, federal law stands firm regarding marijuana as an illegal drug, even when it comes to the Americans with Disabilities Act (ADA). This federal law states that a qualified individual with a disability “shall not include any employee or applicant who is currently engaging in the illegal use of drugs.” The ADA does, however, include a provision that permits illegal drug substances “taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provision of Federal Law” to be covered by ADA protections.

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Will California Employment Law Protect Medical Marijuana Users?

A proposed bill in the state of California would protect medical marijuana users from employment discrimination. California employers currently can deny employment to users of marijuana, even if the use is to treat a medical condition. But the new bill, AB 2069, would amend the existing Fair Employment and Housing Act to create a new protected category: marijuana card holders. The bill would, however, permit employers to deny employment “if hiring the individual or failing to discharge the employee would cause the employer to lose a monetary or licensing-related benefit under federal law or regulations.” Although employers would need to change their drug testing policies and modify how they treat applicants and employees testing positive for marijuana use, AB 2069 would not protect recreational marijuana users.

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Employers Can Maintain a Drug Free Workplace in California Despite State Legalization of Recreational Marijuana

California’s passage of the “Control, Regulate, and Tax Adult Use of Marijuana Act,” commonly referred to as Proposition 64, legalized the scale, possession, and use of recreational marijuana under limited circumstances. The drug still remains an illegal Schedule I substance under the federal Controlled Substances Act and therefore is still subject to prosecution under federal law. Proposition 64 does not affect an employer’s ability to enact and enforce workplace restrictions related to drug possession, use, impairment and testing. Employers also maintain the right to enforce workplace restrictions on medical marijuana.

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SALARY HISTORY

Swimming Against the Tide, Michigan Forbids Salary History Bans 

Michigan’s governor recently signed a bill that forbids localities from adopting salary history bans. The Bill, Senate Bill 353, prohibits local governments from adopting rules regulating the information that an employer or potential employer must request or exclude on an application for employment or during an interview process. While the Michigan Chamber of Commerce and other business groups supported the legislation, Democrats blasted the bill as an attack on local control and argued that it could hinder community efforts to address pay gaps. The legislation comes as several states and cities have moved to prevent employers from asking about applicants’ compensation history.

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Appeals Court Says Prior Salary Doesn’t Justify Pay Differences

Federal appeals court recently ruled that an employee’s salary history is insufficient to justify pay differences between male and female employees. The Equal Pay Act, adopted in 1963, requires employers to pay men and women the same salary for equal work, but it does provide four exceptions: a seniority system, a merit system, a system that measures earnings by quantity or quality of production and a differential based on any other factor other than sex. The recent decision, which only applies to nine western states, overruled a 1982 case that allowed employers to base a pay differential on an employee’s prior salary history.

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To Boost Gender Pay Equity, Chicago’s Emanuel Bans City Departments from Asking Job Applicants for Salary History

As part of a growing effort nationwide to improve pay equality between men and women, applicants for jobs in Chicago can no longer be asked about their salary history. An executive order recently signed by Mayor Rahm Emanuel comes as Illinois lawmakers consider two competing pieces of legislation that aim to close the wage gap by prohibiting employers from asking job candidates what they had earned in the past. Emanuel’s order prohibits city departments from requesting or seeking out a candidate’s salary history, and from screening applicants based on their prior wages, benefits or other compensation. It also calls on the city’s sister agencies, like the Chicago Park District, Chicago Transit Authority and Chicago Public School, to enact similar prohibitions. Although many states have signed similar orders, others, such as Michigan, are pushing back. The state’s governor signed a bill to block local governments from prohibiting employer questions about salaries.

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SOCIAL MEDIA

New Social Media Background Check Bill for Federal Workers and New Hatch Act Guidance

Federal government employees or those thinking of applying for a federal government job should begin to clean up their social media footprint if they don’t want to be terminated or turned down for a position. HR 3737-Social Media Use in Clearance Investigations Act of 2017 focuses on social media background checks for workers who need security clearances. The new bill appears to be moving through Congress, but it is a bit too early to determine how social media backgrounds checks will be performed and who they will focus on.

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Upcoming Conferences, Courses & Events

 

CIPD Understanding Data Protection Law

(This course also forms part of the L7 Advanced Award in Employment Law.)

  • 30 May 2018, London
  • 10 October 2018, London
  • 23 August 2018, London          
 

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14 June 2018, Non-UK Employee Visa Workshop: Employer's Guide to Immigration & PBS, London
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21 June 2018, Document Verification & Right to Work Checks for Non-UK National Employees Workshop, Birmingham
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05 July 2018, Document Verification & Right to Work Checks for Non-UK National Employees Workshop, Edinburgh
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