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Verifile International Newsletter #31

21 Aug 2018

Verifile
newsletter

August 2018 / Issue #31

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


Welcome to the August 2018 edition of our newsletter which contains important news and updates from us.

 

Customising Your Experience

We offer a bespoke service and now have an easy to use form where you can select your customisations. During your next review meeting/call, your Account Manager will walk you through our new Account Preferences tool. This form will then inform us how you prefer to be contacted, customise the emails we send to your candidates and set budgets for additional fees, plus much more. If you would like to discuss customisations before your next scheduled review, please do not hesitate to contact your Account Manager now.

UK Criminal Checks in Northern Ireland via AccessNI

You may remember from our April newsletter that AccessNI, the government agency issuing criminal certificates for Northern Ireland, are modernising their IT system. We can now share further details of changes to their service.

  • If you use the AccessNI service you must create a new NI Direct account and link this to your existing AccessNI account. For guidance on this process, please click here.
  • Using a new NI Direct account, digital certificates will largely replace paper certificates from 17 July 2018.
  • Candidates can opt to receive a paper certificate and can choose where the paper certificate is sent to.
  • We recommend that you encourage your candidates to request a paper certificate.
  • Paper certificates will always be issued if there are convictions.
  • When the candidate's digital certificate is issued to them, they can view and share the certificate to an email address.
  • When the candidate shares the certificate, the certificate can be viewed for up to 3 days.
  • Status updates available to you via the AccessNI portal will remain the same as before. For example, applications will show as 'Certificate issued' when the check is finished.

New DVLA and DVA Consent Form

The Driver and Vehicle Licensing Agency (DVLA) and Driver & Vehicle Agency (DVA) Northern Ireland have issued new consent forms for driving licence checks. The new forms will be provided to candidates from this week. If you have a custom version of the old DVLA form (D796) that includes your organisation name, please replace this with the new copy which we will send to you in the coming days. The new forms can be used straight away. The old forms will no longer be accepted from 26 August 2018 onwards.  

Passport Check

Anyone concerned about the authenticity of British passports should use a passport check.

There is no better way to validate a passport than contacting the issuing authority. This check verifies the passport number against the candidate's name and address. Due to the implementation of GDPR the passport office no longer charges for passport checks. We are delighted to announce that we are now able to significantly reduce the price of this check.

International Screening

Verifile’s clients are scattered around the world. No matter where you are based, you are likely to recruit individuals with varying backgrounds. Perhaps they grew up in Brazil, studied in France and worked in New York before coming to work for you in Sydney?

At Verifile we speak over 14 languages and are delighted to recently have increased our German and French speaking team members.

Background checks are important no matter where someone has previously lived. Verifile has an extensive range of international criminal, credit, driving licence, directorship, identity and company credit checks, to help fulfil your international screening needs.

What are these checks?`
Verifile's range of 6 international checks cover the main requirements for international background screening:

SERVICE

TYPICALLY INCLUDES

Criminal Check

Criminal convictions obtained from police, government ministries and bureaus, courts and/or embassies.

Credit / Financial Check

Bankruptcy, defaults, disqualifications, judgements, voluntary arrangements, directorships, payment history, addresses and/or shareholding.

Directorship Check

Current directorships, past directorships, dates of appointment, shareholdings, functions and/or disqualifications.

Identity Verification

Name, date of birth, current addresses, previous addresses, passport validity, identification numbers and/or tax numbers.

Driving Record Check

Driving licence status, entitlements, restrictions, traffic offences, suspensions and/or disqualifications.

Company Report

Identification, credit risk rating, registry date, legal filings including bankruptcy, court judgements and tax liens, management and staff, board of directors, share capital, shareholders, financial accounts and/or payment punctuality.

These checks are provided on a per jurisdiction basis. The scope of check, availability, process requirements and pricing vary according to jurisdiction.

When should I order these checks?
Best practice is to undertake the same checks on all new joiners. You may decide to have screening tiers, for example, screen high risk roles more extensively, but it is important to undertake the same checks irrespective of where the joiner has previously lived. So, if your screening policy requires you to undertake a UK credit and criminal check, you should also undertake these checks in other countries if your new joiner has recently moved from another country to the UK.

How do I place orders for international checks?
Each check has its own instructions. Sometimes an application form will need to be filled in by the candidate. Contact our Client Service Team on +44(0)1234 339 350 or via service@verifile.co.uk to request the check instructions.

When you have filled in the required forms and collected any other information or documents, you can place your international screening order online. Please note this applies only if your user account has ordering of international checks enabled. If not you can email the scanned forms to service@verifile.co.uk. If the instructions ask you to post us original forms or documents, please always tell us by phone or email what you have posted to us and when.

If you have screening packages and our enhanced service level, then we can review your candidates’ backgrounds and automatically proceed with or gain approval for international checks. For example, if a candidate has lived in a country for 6 months or more during the last 5 years, then a credit and criminal check will be undertaken in that country. This is one of many service customisations available to you, please contact your Account Manager or our Client Service Team for more information.

What information do I or my candidate need to supply?
The instructions for each check will explain if an application form needs to be filled in and if any other information needs to be provided. Please do follow instructions carefully and encourage your candidates to do the same. Forms must be filled in fully to avoid delays. Simple errors such as candidates adding today’s date into a date of birth section can really slow down processing times. All forms, document copies, original documents and other information should be provided together, to us at the same time.

Can I keep the instructions on file so I have them when I need to order the same check again?
Instructions and forms change from time to time because the authorities providing results can change their requirements, and often do so without any advance notice. We advise against keeping instructions and forms on file for this reason. If you do decide to do this, then please be aware that if the form has been replaced by a newer version we will ask you to fill in the newer version as authorities will not normally accept old forms.

How long will results take?
Turnaround times vary significantly between checks, countries and the authorities supplying results. Guide turnaround times can be found on our Product/Price Lists (links are below). These guide times start from when we receive all of the information required to process the checks and not necessarily from when you placed your order.

What results can I expect?
Results are provided via our online client portal. Most results are included within the final report, but some detailed results are provided in attachments that can be downloaded separately. When we receive official certificates from authorities, such as the French criminal certificates, these will be made available to you. Sometimes results are provided to us in other ways such as via online portals. These results are always passed on to you as Verifile reports.

Want to find out more?
See below a list of the types of checks we carry out:-

  • Criminal
  • Credit / Financial
  • Directorships
  • Identity Verification
  • Driving Licence
  • Company Credit Checks

We can also verify employment, education and professional qualification, plus collect character/professional references from anywhere in the world.

Please contact our Client Service Team on +44(0)1234 339 350 or speak to your Account Manager if you would like any further information.


Verifile product changes

Please find below an update for the checks that have had a change of process, requirements or forms. If you would like us to send you the current documentation for any of the listed checks please contact us by emailing service@verifile.co.uk.

Gibraltar Criminal check
Gibraltar Police have introduced a new ‘Vetting Application Form’. Authorities will no longer accept the old forms. A new instruction and application form is now in place to reflect this change.

Bermuda Criminal check
Due to unforeseen circumstances the Police vetting office is currently taking longer to complete newly submitted applications. This comes due to finding asbestos in some of fireproof filing cabinets that house Police criminal records. Police are working on a timeline for full restoration of standard service turnaround times and here at Verifile we are monitoring the situation to make sure that all the new applications get processed as quickly as possible, however some delays may be expected.

Costa Rica Criminal check
Costa Rica Judicial Registry of the Executive Directorate of the Judiciary have slightly changed the application forms and will no longer accept the old forms. The new application forms are now in place to reflect this change.

Austria Credit checks
We are pleased to announce that we are now able to offer a new Credit check in Austria. This new report will provide a wealth of information:

  • Overview
  • Creditworthiness Rating
  • Negative Events
  • Personal Information
  • Directorships, Profession, Earning Capacity
  • Sociodemographic Data
  • Address Changes
  • Payments
  • Land Registry Information

The new price for this check has had a substantial price reduction with a quicker turnaround time and the reports will be ready in just 1-3 days, which is 10 days faster than previously offered.

Ukraine Directorship checks
We have re-introduced this check and are sourcing this directly from the authorities in Ukraine. This is available for you to order from today, with a at a reduced price. This also means we have a quicker turnaround time and the reports will be ready in 3-5 days, which is 10 days faster than previously.

Spain Criminal Check
Ministry of Justice is now only accepting the “application form 790” in Spanish. Authorities will no longer accept the English version of this form. A new instruction and application form is now in place to reflect this change.

Cyprus Credit (Bankruptcy) and Directorships Checks
A new instruction is now in place to reflect a change in requirements. Going forward Cyprus ID number or Passport number will be required to run the search.


International news

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

Worldwide

Africa

Nigeria

Read more
  • There are 58 Fake Universities Operating At The Moment In Nigeria, Says National Universities Commission

Asia Pacific

Australia

Read more
  • Labor’s Colleen Yates Quits: Scrutiny ‘Just Isn’t For Me’
  • Top Ways Candidates Lie To Secure A Role

Europe

Europe

Read more
  • How Much GDPR Control Do You Really Need?
  • Will GDPR Lead to Seismic Shift In How Data Is Managed?
  • GDPR Finally Comes into Effect and Will Have an Impact on Serbian, Montenegrin and Bosnian Businesses
  • GDPR Insurance: Coverage for Fines Hard to Find but Other Non-Compliance Costs Insurable

France

Read more
  • One Day Before the Entry Into Force Of The GDPR, The French Bill Is Adopted. But Referred to The French Constitutional Council

Turkey

Read more
  • Turkey Announces Details of Data Protection Authority’s Organizational Structure

United Kingdom

Read more
  • GDPR After 25 May What Does This Mean For HR?
  • Why Childhood Crimes from Over 30 Years Ago Show In DBS Checks – Study
  • Criminal Record Checks Could Infringe Human Rights, Supreme Court Hears
  • What Changes for UK Data Protection Legislation GDPR and the Data Protection Act 2018

North America

Canada

Read more
  • Countdown to Cannabis Legislation Good News for Employers: No Unfettered Right to Use Cannabis at Work
  • Employers Decision to Refuse Job to Medical Pot Smoker Upheld
  • Good News for Employers: No Unfettered Right to Use Cannabis at Work
  • The Legalization of Cannabis: 7 Reasons Why Employers Should Take Notice
  • Zero Tolerance for Employee Fired For Smoking Medical Pot On Swing Stage

United States

Read more
  • European Personal Data Compared to U.S. Personal Identifiable Information under the New GDPR
  • Asking a Job Applicant Previous Pay May Violate the Equal Pay Act
  • More States and Cities Move Ahead of the Courts by Prohibiting the Use of Prior Salary Information in Hiring
  • Government Accountability Office (GAO) Asked to Examine Impact of “Ban the Box” Hiring Policy
  • Massachusetts’s Attorney General on the Lookout for Prohibited Criminal History Inquiries
  • He Was the Perfect Applicant … Until We Received the Background Check
  • Using Credit Histories in Employment Decisions: An Overview of Divergent State & Local Requirements
  • Are Criminal Background Checks for Nursing Home Residents Coming?
  • New Arizona Laws Address Data Breaches and Hiring Ex-Offenders
  • Ninth Circuit Rules CRA Cannot be Held Liable Under FCRA for Customers’ Misuse of Information
  • Pennsylvania Governor Wolf Issues Executive Order Attempting to Address Pay Inequality
  • St. Louis Bans the Box to Help Ex-Offenders Find County Jobs
  • The Spokeo Chronicles: Another Tentative Background Check Win for Kroger Subsidiary
  • Vermont Passes First Law to Crack Down on Data Brokers
  • Cannabidiol and Drug Tests
  • Cannabis Use Across Industries and Occupations: What Can A Business Do?
  • Company Fired Employee for Participation in Medication-Assisted Treatment for Drug Addiction, Federal Agency Charged
  • Maine’s New Recreational Marijuana Law Permits Employers to Enforce Policies Restricting Use
  • Vermont Attorney General Publishes Guide to Marijuana in the Workplace
  • Do You Have a Consent Clause in Any of Your Policies or Contracts?

South America

South America

Read more
  • Data Protection Regulation in Latin America and the Impact of the GDPR

 

Worldwide

 

Africa & Middle East

Nigeria

58 Fake Universities Operating At The Moment In Nigeria, Says National Universities Commission

According to the National Universities Commission (NUC), 58 fake universities were carrying out illegal operations in Nigeria, while another eight were running illegal degree programs. The NUC has warned individuals that seeking admission into any of the 58 universities would be at their own risk and that the National Youth Service Corps will not accept them, nor will they be able to be employed in the country. The affected universities have apparently been shut down for going against the national minimum standard by the federal government. The universities include the University of Accountancy and Management Studies, Christians of Charity American University of Science and Technology, and the University of Industry.

Read more

Asia Pacific

Australia

Labor's Colleen Yates Quits: Scrutiny 'Just Isn't For Me'

Labor’s Colleen Yates has quit the race for Darling Range citing “intense scrutiny.” Yates listed an MBA from UWA in her LinkedIn profile even though she was never awarded the degree. A number of US universities contradicted other education claims in her online resume. “I am announcing my resignation as the Labor Candidate for Darlin Range,” she said in a statement. “How I portrayed myself on my LinkedIn is, in my opinion, similar to how thousands of people would input their data on the online service. However, these minor mistakes will now haunt me for the rest of my life.”

Read more

Top Ways Candidates Lie to Secure a Role

Lying on CVs is not an uncommon or new phenomenon – but it is an aspect of recruitment that industry leaders need to watch. A report from CV-Library found that 92% of jobseekers have successfully gotten away with lying on their CVs, with 71% stating they landed a job as a direct result of that lie. After interviewing more than 1,000 employees, the report found that there are five areas that candidates are most willing to deceive on: Dates of employment - 31.4%; Gaps in their CV - 27.1%; Salary - 21.4%; Work experience - 12.9%; and Responsibilities in previous job -11.4%. “It’s clear from our findings that workers are not afraid to tell white lies on their CV in order to get a job,” said Lee Biggins, MD of CV-Library. “For employers, this means recruitment teams need to become more vigilant when it comes to vetting and assessing potential hires.”

Read more

 

Europe

Europe

How Much GDPR Control Do You Really Need?

According to industry consultants, companies should see GDPR not as just one more irksome compliance challenge, but as an occasion to look more broadly at their security processes and to situate compliance within frameworks that they may already have, at least partially, in place. They suggest eight principles that can help determine the need for specific GDPR-focused upgrades: including knowing your assets and where they are located; possibly using your current risk management program as-is, perhaps extended to cover a specific focus on protection of GDPR; implementing standard security frameworks to address GDPR and other regulatory requirements; run IT based on best practices all the way from governance down to technical IT processes; always have a valid reason to process PII; get buy-in from management the right way; do regular check-ups of your entire IT environment; and automate whenever and wherever you can.

Read more

Will GDPR Lead To Seismic Shift In How Data Is Managed?

A new article in HR Grapevine discusses how firms will cope with the new way of managing data, specifically, how some will see it as a regulatory burden, while others will view it as a way to create a corporate culture of compliance. The article suggests that companies need to engage the whole workforce, and that firms that really use GDPR to enhance their data protection will foster trust. Overall, it notes that while getting the hang of GDPR is onerous, creating a culture of awareness is fundamental to business security, and GDPR can bring many benefits to a business.

Read more

GDPR Finally Comes into Effect and Will Have an Impact on Serbian, Montenegrin and Bosnian Businesses

Although GDPR is an EU regulation, its application is not limited to the companies located within the territory of the Union. Its scope also reaches undertakings established outside the EU including Serbian, Montenegrin and Bosnian businesses. Therefore, those entities wanting to avoid reputational damage and the risk of being exposed to the large fines which courts in EU member states may impose for violation of GDPR, should review and adapt their privacy/data protection policies and proceedings; appoint a representative in the EU, where applicable; and should not lose sight of what complying with GDPR requires.

Read more

GDPR Insurance: Coverage for Fines Hard to Find But Other Non-Compliance Costs Insurable

Aon and DLA Piper recently revealed a “price and data security” guide regarding insurance for the General Data Protection Regulation (GDPR), which revealed that Finland and Norway are the only two counties where insurance for fines might be found. The guide reviews the insurability across Europe, which can reach up to four percent of a group’s annual global turnover. Although coverage may be limited, the authors still encourage businesses to make insurance part of their risk management strategy to manage costs associated with GDPR non-compliance and resulting business disruption losses.

Read more


France

One Day Before the Entry into Force of the GDPR, the French Bill is Adopted... But Referred to the French Constitutional Council

The French government has begun work to adapt the country’s personal data protection law to the new GDPR. The most notable differences between the two laws include: territorial scope; corrective actions and penalties; processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes; processing in health-related matters; legal age of consent for minors; broadening class actions; obligation for the data controller as regards consent; processing in the scope of employment relationships; processing for journalistic purposes; and appointing a data protection officer.

Read more


Turkey

Turkey Announces Details of Data Protection Authority’s Organizational Structure

Turkey has published details of its Data Protection Authority’s organizational structure department duties, powers and responsibilities, as well as the Authority’s working procedures and principles. The Regulation states that the Authority will consist of a presidency, plus a nine-member board that will include the Authority’s president and the second president. The President will appoint people to carry out internal audit, enquiry and investigations. The Board is authorized to issue rules and guides for any matters that are not addressed or clarified in the Regulation.

Read more


United Kingdom

GDPR after 25 May What Does this Mean for HR?

What should HR teams be doing to ensure GDPR compliance? According to legal experts with Clyde & Co., HR should keep staff informed of any changes to the legislation. HR should also prepare and update policies and procedures, for example, those relating to recruitment and obtaining references and medical reports. Another key item for HR is to educate staff about their data protection and security obligations, which also demonstrates that HR has taken steps to ensure that staff process personal data lawfully. HR should also keep personal data no longer than necessary and implement data retention polices. Last, HR should demonstrate compliance with data protection principles.

Read more

Childhood Crimes From Over 30 Years Ago Show In DBS Checks – Study

Nearly half a million childhood convictions from more than 30 years ago have been disclosed on criminal record checks in the past five years, research has found. A further half a million criminal records relating to convictions more than 30 years ago when the person was a young adult aged 18 to 25 were disclosed in the period, according to data uncovered by the charity Unlock.

Its report, A Life Sentence for Young People, also reveals the findings of a survey of people with convictions and cautions, which shows 86% of respondents had a problem with employment later in life. About two-thirds also reported problems with stigma and discrimination. The report comes ahead of a key hearing in the supreme court next month, in which the Home Office will appeal against a high court ruling that the current regulations used by the Disclosure and Barring Service (DBS) are unlawful and disproportionate. The original ruling was upheld in the court of appeal.

Read more

Criminal Record Checks Could Infringe Human Rights, Supreme Court Hears

The current criminal records check system, which is used by employers when hiring for certain roles, disproportionately damages the chances of those with minor offences, according to a case currently being heard by the country’s top court. The government is appealing a May 2017 Court of Appeal decision, which held that Disclosure and Barring Service (DBS) checks for individuals with multiple convictions and certain specified offences were contradictory to people’s right to private and family life under article 8 of the European Convention of Human Rights

Following a 2013 Court of Appeal decision, the government introduced a filter which meant single convictions for certain offences for which the person was not given a custodial sentence would not be revealed to employers, provided the conviction was spent. However, this filter does not apply to people with more than one conviction, regardless of the nature of the crimes.

Judgment is expected to be reserved, meaning it will be delivered at some point in the future, rather than straight after the hearing.

Read more

What Changes for UK Data Protection Legislation GDPR and the Data Protection Act 2018

While both the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA) are similar in nature, the DPA 2018 covers areas that are not covered by the GDPR and deals with “the processing of personal data by certain authorities for law enforcement purposes by bringing the Police and Criminal Justice Directive (Law Enforcement Directive or LED) into UK law.” It also applies an updated form of the GDPR to processing that is outside both the LED and GDPR and aims to ensure that the UK would be able to exchange freely data with the European Union after Brexit. Five features of the DPA 2018 are different than the 1998 regulations. These include: An increased consent requirement, the right to erasure, children’s data, the right to data portability and automated decision-making and profiling.

Read more

 

North America

Canada

Countdown to Cannabis Legislation Good News for Employers: No Unfettered Right to Use Cannabis at Work

A pair of recent cases help to highlight the boundaries of cannabis use within the workplace and the limits of the duty to accommodate employees in safety sensitive positions with medical authorizations for cannabis. The decisions should provide some measure of relief for employers looking to control the use of cannabis at the workplace, especially where there are significant safety concerns; having a medical authorization will not override all safety concerns. The cases are also helpful in the context of regulating recreational cannabis in the workplace as they confirm that use in the workplace is not an unfettered right, even where an employee has a medical authorization. It is important to remember that every situation will be different and mus be analyzed based on the particular circumstances.

Read more

Employers Decision to Refuse Job to Medical Pot Smoker Upheld

On August 1, 2018, the government’s plan to legalize recreational marijuana will come into effect and employers will be faced with questions about how to manage cannabis in the workplace, whether medicinal or not. Legal cases are beginning to emerge, such as a recent decision in Lower Churchill Transmission Construction Employers’ Association and IBEW, Local 1620, where an Arbitrator dismissed an employee’s grievance after he was refused employment based on his use of medicinal cannabis in the evenings. In the case, the Grievor was prescribed medicinal cannabis to treat his osteoarthritis and Crohn’s Disease. The Grievor sought employment as a Utility Worker and Assembler at a construction project for a hydroelectric power generation facility. Once his medicinal cannabis use became known, the employer did not offer the Grievor either role, and the ruling was upheld. Overall, in order to avoid legal exposure, employers should ensure that they continue to assess accommodation to the point of undue hardship on a case by case basis, regardless of whether medicinal cannabis use is involved or not.

Read more

Good News for Employers: No Unfettered Right to Use Cannabis at Work

As the cloud of recreational cannabis legalization looms on the horizon, employers will face difficult situations pertaining to cannabis and the workplace. Just because recreational cannabis will be legal, and medically authorized cannabis use is already permitted, this does not mean that an individual will be given carte blanche to use cannabis. Workplaces will be allowed to implement and enforce rules about the use of cannabis, especially where there is a safety element to the job. Employees with medical authorizations may be prescribed a form of cannabis with very little to no THC, meaning impairment will not be an issue. An employer’s policy should require an employee to advise the employer of a medical authorization before an incident can occur. Employers will also need to get information from the medical professional who provides the authorization, including dosage, THC concentration and timing of use.

Read more

The Legalization of Cannabis: 7 Reasons Why Employers Should Take Notice

Cannabis legislation is expected to pass in July with legalization by September. Employers should take notice because: There is already a lot of cannabis in Canada; Next to British Columbia, Atlantic Canadians have the highest level of support for legalization (41%) and the lowest opposition to it (35%); Cannabis is addictive; Cannabis is different from alcohol, as the effects of cannabis are more subtle and longer lasting; and the effects of cannabis on motor vehicle operation is an obvious concern. The Journal of Occupational and Environmental Medicine says that, given that inhaled THC may impair complex human performance for more than 24 hours after ingestion, employers should not assume that cannabis use between shifts is uniformly safe. In addition, studies have linked cannabis use directly with an increased prevalence of workplace injury.

Read more

Zero Tolerance for Employee Fired For Smoking Medical Pot On Swing Stage

The recent decision of the Ontario Human Rights Tribunal in Aitchison v. L & L Painting and Decorating Ltd. demonstrates that employees do not have unfettered rights when it comes to using medical marijuana in the workplace. The employer relied on a Zero Tolerance policy that prohibited using drugs or alcohol at work. The applicant brought a human rights complaint alleging that he had been fired because of his disability, was not properly accommodated, and his supervisor was aware of his need to use medical marijuana at work. While the Tribunal agreed the Applicant had a disability, it concluded that the disability was not a factor in his dismissal. Employers will not be able to rely on zero-tolerance policies when faced with requests to use medical marijuana to treat recognized disabilities.

Read more


United States

European Personal Data Compared to U.S. Personal Identifiable Information under the New GDPR

The GDPR gives EU citizens significant rights concerning how personal data is collected, processed, and transferred by data controllers and processors. Yet, there’s a difference in how the EU and U.S. view “personal data.” For example, “personally identifiable information” is a term commonly used in the U.S. and includes information used to distinguish someone’s identity. This broad definition has far reaching implications for all U.S. organizations to comply with the GDPR because of the increase in the scope of data with the definition of “personal data.” Determining whether the GDPR applies can be analyzed by knowing if the U.S. organization has an established presence in the EU; if the U.S. organization processes personal data of data subjects in the EU by offering subjects goods or services; and if the organization processes personal data in the EU by monitoring behavior. If any apply, then U.S. organizations are compelled to comply.

Read more

SALARY HISTORY

Asking a Job Applicant Previous Pay May Violate the Equal Pay Act

The United States Court of Appeals for the Ninth Circuit recently enacted a law that prior pay cannot be used to justify wage differentials between employees under the Equal Pay Act of 1963 (EPA). There are four exceptions to the rule, however: an employer’s use of a seniority system, an employer’s use of a merit system, an employer’s use of a quantity-based system and “any factor other than sex.” Rizo v. Yovino perfectly emphasizes the importance of the EPA. After the Fresno County Office of Education used a female employee’s prior pay to explain why it paid her less than men who performed equal work, the Ninth Circuit ruled that the employer would no longer be using previous pay to justify unequal wages under “any factor other than sex.”

Read more

More States and Cities Move Ahead of the Courts by Prohibiting the Use of Prior Salary Information in Hiring

Like the “Ban the Box” initiative that includes 31 states, the District of Columbia and more than 150 cities and counties, a number of states in the last year have passed laws that prohibit employers from obtaining past income and salary information from applicants. Some would argue that the pay disparity was fixed by the Equal Pay Act of 1963 (EPA), but the case of Rizo v. Yovino, supported the idea that employers cannot use salary history to justify differences in pay. Math consultant Aileen Rizo sued the Fresco County Office of Education, claiming that she was paid less than men performing the same job function. Although it was originally thrown away by the court, a 12-judge panel in the Ninth Circuit reserved the prior decision and limited the EPA’s affirmative defenses for “any other factor other than sex,” to “legitimate, job-related factors such as prospective employee’s experience, educational background, ability, or prior job experience.”

Read more

Ban the Box

Government Accountability Office (GAO) Asked to Examine Impact of “Ban the Box” Hiring Policy

The Government Accountability Office (GAO) has been asked to examine whether a federal hiring policy issued late in the Obama administration is having unintended consequences. The late 2016 rules bar agencies from asking about an applicant’s criminal record (or adverse credit record) as an initial screening question, however concerns have been raised that “employers may make assumptions about criminality based on race alone.”

Read more

Massachusetts’s Attorney General on the Lookout for Prohibited Criminal History Inquiries

Seventy employers are being investigated for violating Massachusetts’s “ban the box” law, which prohibits most businesses from asking about job candidates’ criminal backgrounds on initial employment applications. The Boston-area businesses range from a restaurant chain to a skin care company to a book store. Three of the larger companies were fined $5,000 each and all were required to alter their application process to comply with state requirements. Warning letters also were sent out to other companies in question.

Read more

CRIMINAL RECORDS CHECKS

He Was the Perfect Applicant … Until We Received the Background Check

Although it is legal to base a hiring decision on the results of a background check, doing so could lead to a disparate treatment claim or disparate impact claim. Businesses are encouraged to implement a written policy that sets forth what background findings will be disqualifying and under what conditions. Under the Equal Employment Opportunity Commission (EEOC), employment discrimination is prohibited on the basis of characteristics like race, sex, religion and national origin. This includes first providing a copy of the report which was used to make an adverse employment decision before the action is taken and after a decision has been made, informing the applicant orally, electronically or in writing about the findings.

Read more

CREDIT CHECKS

Using Credit Histories in Employment Decisions: An Overview of Divergent State & Local Requirements

Ten states, the District of Columbia, and the cities of Chicago, New York City and Philadelphia have passed laws restricting the use of credit reports used by employers for employment purposes. Bills also have been proposed in the U.S. House of Representatives and the Senate regarding consumer credit information and employment. The Equal Employment Opportunity Commission (EEOC), however, has expressed concern with employers who use criminal history screening and credit checks in their hiring decisions because it is believed that relying on this information creates a disparate impact on certain minority groups. Given the EEOC’s stand on the issue, along with the Fair Credit Reporting Act ‘s (FCRA) prohibitions, as well, employers should not directly or indirectly request credit information and/or conduct credit checks unless required to do so under state or federal law or unless an exemption is met.

Read more

LEGAL

Are Criminal Background Checks for Nursing Home Residents Coming?

A jury found that a nursing home and its affiliates were liable for the 2013 sexual assault of a resident by another resident. Evidence was presented that the facility new the assailant had previously been convicted of sexual assault, targeted the victim because she suffered from dementia, threatened to rape a caregiver, and no longer needed the services of the facility. Even though the nursing home was instructed by the Lancaster County Office of Aging (OOA) in 2010, to initiative a care plan, the assailant was placed in a room just two doors down from the victim’s room. The plaintiff, who since has passed on, was awarded $7.5 million in damages against the nursing home, finding that the facility and its parent company were 85 percent at fault for the victim’s injuries and damages. Pennsylvania does not require background checks of nursing home applicants, but it does require employee criminal background checks under the Older Adults Protective Services Act (OAPSA).

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New Arizona Laws Address Data Breaches and Hiring Ex-Offenders

House Bills 2154 and 2311 recently were signed into law by Arizona Governor Doug Ducey, which will take effect Aug. 3, 2018. HB 2154, which strengthens Arizona’s data breach consumer protection statutes, provides employers with additional guidance and updated notice procedures in the event of a data security system breach, while HB 2311 bolsters limited liability protections for employers when hiring employees or contracting with independent contractors previously convicted of criminal offenses. The new legislation requires Arizona employers that become aware of “security incident” to conduct a prompt investigation to determine whether a security system breach has occurred. In addition, the law prohibits introducing evidence of an employee’s or independent contractor’s criminal offenses and/or convictions prior to the date of hire or engagement in negligent hiring cases.

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Ninth Circuit Rules CRA Cannot be Held Liable Under FCRA for Customers’ Misuse of Information

The Ninth Circuit ruled in May that an end-user’s misuse of reported information does not render a credit reporting agency’s report inaccurate for purposes of liability under the Fair Credit Reporting Act (FCRA). The court affirmed the district court’s grant of summary judgment in the putative class action case brought against a national credit reporting agency (CRA). Centered on the CRA’s reporting of short sale sand foreclosures, plaintiffs John Shaw, Kenneth Coke and Raymond Rydman brought the putative class action against the CRA, alleging it violated the FCRA in failing to follow reasonable procedures to ensure maximum accuracy, in failing to conduct a reasonable investigation and in failing to fully disclose their files.

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Pennsylvania Governor Wolf Issues Executive Order Attempting to Address Pay Inequality

In June, Pennsylvania Governor Tom Wolf signed Executive Order 2018-18-03, which addresses the gender pay gap in the state. All state agencies under the governor’s jurisdiction have been directed to: No longer inquire about a job applicant’s current compensation or compensation history at any stage during the hiring process; base salaries on job responsibilities, position pay range and the applicant’s knowledge, skills, competencies, experience, compensation requests, or other bona fide factor other than sex, except where compensation is based on clearly defined situations; and clearly identify the appropriate pay range on job postings. Applicants are not, however, prohibited from volunteering information about their current compensation level or salary history.

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St. Louis Bans the Box to Help Ex-Offenders Find County Jobs

St. Louis County has joined other area governments that have enacted “ban the box” policies, prohibiting employers from asking job applicants about their criminal histories in their initial employment applications. The executive order, signed by St. Louis County Executive Steve Stenger, asks the county director of administration and director of personnel to remove criminal history from employment applications. It does not, however, prevent a criminal background check as a condition of employment in St. Louis County government.

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The Spokeo Chronicles: Another Tentative Background Check Win for Kroger Subsidiary

A magistrate judge in the U.S. District Court for the District of Oregon has made recommendations to dismiss both Fair Credit Reporting Act (FCRA) allegations against Kroger subsidiary Fred Meyer. The class action alleges that the retailer’s background check process for prospective employees violates the Act by failing to properly disclose that a report will be run and failing to comply with the statute’s procedural requirements before taking adverse action against an applicant. The judge found that the disclosure satisfied the FCRA’s stand-alone requirements and rejected the contention that Fred Meyer’s pre-adverse action notice violates the FCRA. In addition, the judge found that the suit lacked Article III standing to pursue his pre-adverse action claim.

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Vermont Passes First Law to Crack Down on Data Brokers

Data brokers in the state of Vermont will now have to register as such with the state, take standard security measures and notify authorities of security breaches. In addition, using their data for criminal purposes is now its own actionable offense. These data brokers collect information on people from as many sources as possible, buying and selling it and, as long as they step carefully, they can remain under the radar. For instance, according to Pam Dixon, director of the World Privacy Forum, these data brokers create legal credit scores based upon things like shopping habits and zip codes, while making educated guesses about health conditions based on prescriptions.

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DRUG SCREENING

Cannabidiol and Drug Tests

Cannabidiol (CBD), one of approximately 400 compounds found in cannabis, does not produce a high, but research surrounding its use is in its early phases. So far, studies have revealed that CBD “may benefit medical and therapeutic issues such as seizures, PTSD, neurological diseases, pain, cancer, inflammation and mood disorders.” Sara Jane Ward, assistant professor of pharmacology at the Temple University Lewis Katz School of Medicine, told U.S. News Health that, because the U.S. Department of Agriculture does not test for CBD, companies are able to sell its products more often. Available in oil, vapors, and beauty and health products, the compound itself would not produce a positive test for marijuana or marijuana metabolite. However, if the product contains THC at a higher concentration, it’s possible a drug urine test could come back as positive.

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Cannabis Use Across Industries and Occupations: What Can A Business Do?

Nine states and the District of Columbia now have legalized marijuana for recreational use. Twenty additional states allow medical marijuana and the numbers are expected to grow. Employers are finding it difficult to comply with both state and federal laws since marijuana still remains a Schedule I illegal drug under the Controlled Substance Act. In April, the Food and Drug Administration (FDA) requested public comments regarding the use of cannabis, while its advisory panel unanimously recommended approval of a cannabis-based medication to treat seizures in children. Senate Minority Leader Chuck Schumer also announced that he would introduce a bill to decriminalize marijuana under federal law, while President Donald Trump promised a Colorado senator that he would “support efforts to protect states with legalized marijuana.” Currently, however, because of its place as a Schedule I drug, employers are permitted to require a drug-free workplace, but should consider specific laws regarding medical marijuana use.

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Company Fired Employee for Participation in Medication-Assisted Treatment for Drug Addiction, Federal Agency Charged

Foothills Child Development Center was found to have violated federal law under the Equal Employment Opportunity Commission (EEOC) when it terminated employee Leon Dabrowski, after he disclosed his participation in a supervised medication-assisted treatment (MAT) program. The afterschool teacher was hired to work at the Easley, S.C., facility, but was fired just 30 minutes into his first day of employment due to the use of Suboxone. Foothills is required to pay Dabrowski $5,000 and also has entered into a five-year consent decree, which requires the company to amend its written drug use policy to include a clear and specific exclusion to the policy for individuals who use legally-obtained prescription medication in a lawfully prescribed manner.

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Maine’s New Recreational Marijuana Law Permits Employers to Enforce Policies Restricting Use

On May 2, 2018, an amended law permits employers in the state of Maine to enforce workplace policies restricting the use of marijuana and to take disciplinary action in accordance with those workplace policies. The original law prohibited employers from refusing to employ a person who used marijuana outside of the employer’s property, while the new law does not require an employer to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or cultivation of marijuana or marijuana products in the workplace. In addition, the new law states that an employer may enact and enforce workplace policies restricting the use of marijuana and marijuana products, and allows the employer to discipline employees who are under the influence of marijuana in the workplace or while otherwise engaged in activities within the course and scope of employment.

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Vermont Attorney General Publishes Guide to Marijuana in the Workplace

As a precursor to the enactment of Vermont’s July 1, 2018, recreational marijuana law, the Vermont Office of the Attorney General released the “Guide to Vermont’s Laws on Marijuana in the Workplace” to address key factors regarding the state’s marijuana laws and guides employers on the topic of drug testing in the workplace. For example, individuals in the state no longer will face criminal penalties for possessing up to an ounce of marijuana or five grams of hashish and two mature and four immature marijuana plants. Employers still maintain certain rights, however, regarding the regulation of use, consumption and possession, as well as policies prohibiting the use of marijuana in the workplace, among others. The use of prescription marijuana by employees with certain debilitating medical conditions is permitted under Vermont’s medical marijuana law, but workplace laws do apply.

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DATA PROTECTION

Do You Have a Consent Clause in Any of Your Policies or Contracts?

General Data Protection Regulation (GDPR) laws went into effect on May 25, 2018. It is important for employers to understand the new European Union data protection law, as it has imposed new obligations in the collection and processing of personal data. Although consent remains a legitimate ground for processing both sensitive and non-sensitive data, the GDPR states that “consent must be freely given, specific, informed and an unambiguous indication of the data subject’s wishes represented by a clear affirmative action.” It also must be obtained for specific purposes and, under new regulations, multiple consents from employees may be necessary.

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South America

Data Protection Regulation in Latin America and the Impact of the GDPR

The General Data Protection Regulation (GDPR) will give rise to new data protection legislative measures in Latin America, where a large number of European companies operate. In Chile, lawmakers have been working on a reform of a data protection law for several years, proposing the creation of a personal data protection agency to ensure compliance with legal obligations and to penalize any breach thereof. In Colombia, legislation has been introduced to endow Colombia’s regulations with the same international scope as the GDPR. In Mexico, a federal law governs the lawful, supervised and informed processing of personal data. And Peru has specific personal data protection regulations in place, with plans to establish a new classification for breaches and infringements of data protection regulations.

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