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Verifile Newsletter #32

08 Nov 2018

 

Verifile
newsletter 

October 2018  /  Issue #32

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


Hello

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

 


Verifile News

Paying by Direct Debit

 

Did you know that we can accept payments by direct debit? Paying by direct debit is easy and secure, and fast to set up.  To set up a direct debit on your account, fill in the simple GoCardless form here or speak to your Account Manager.


UK Criminal Checks in Northern Ireland via Access NI
NI Direct Account
If you order criminal checks in Northern Ireland, and haven't yet created your new NI Direct account, we encourage you to do so now.  Guidance can be found here.  We are more than happy to walk you through the process if this helps.

Certificates
Digital certificates are now being issued to all candidates unless convictions are being disclosed. Candidates can share the electronic certificate with you via their AccessNI account. Certificates that include convictions are always posted and all candidates can opt to receive a posted certificate if they wish.

There is plenty of guidance for candidates on the  AccessNI website.  Our Candidate Team are also available to help candidates.

EU Member States
For enhanced checks and when the role includes regulated activity with children, AccessNI requests information on nationals from 9 EU Member States. Due to delays of 6 weeks or more obtaining this information from Poland and Romania, AccessNI has suspended requesting criminal record information from those countries. Verifile can provide a criminal check in Poland, or candidates can be asked to provide a certificate of good conduct. Once delays have been resolved, AccessNI will re-start the request of criminal record information for nationals of Poland and Romania, and we will update you accordingly.


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

British Virgin Islands Criminal Check
A new instruction is in place to reflect simplified requirements.

Spain Criminal Check
A new instruction is in place to reflect a change in requirements. A copy of your identity card or passport must be notarized by a Notary Public or certified by a Spanish Embassy or Consulate. Solicitor certifications will no longer be accepted by authorities.

Chile Directorship Search
A new instruction is in place to reflect a change in scope of this service and requirements. Going forward, this search will cover current directorships and current and past shareholdings. Historic directorship information is no longer available.  

France Criminal Check
A new instruction is in place to reflect the requirement to provide candidate’s current address of residence.

Ireland Criminal Record Check
We are no longer offering a criminal records check from Garda Síochána. The check that was designed to screen individuals for positions through which they have unsupervised access to children and/or vulnerable adults is now only available to organizations with a registered office in the Republic of Ireland.

International news

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

Worldwide

 

Asia Pacific

 

 Australia

Read more

Everyone Lies in Their Job Application…So Can I Fire Them?

The AHRC and Criminal Record Discrimination: A Toothless Tiger

Top Ways Candidates Lie to Secure a Role


 India

Read more

E-Hiring Still Needs Reference Checks   

GDPR Effects on India

Here Are A Few Tips for Employers Must Know to Comply With Privacy Laws In India

India Has 277 Fake Engineering Colleges, Delhi Highest With 66 

India Releases Draft Personal Data Protection Regulation

India’s Telecom Regulator Recommends Stricter Data Security Rules

 


 South Korea

Read more

South Korea – Government Cuts Jobs Outlook and Lowers Growth Forecast For H2 2018

Europe

 Europe

Read more

The European union and Japan Agreed to Create the World's Largest Area of Safe Data Flows


 Belgium

Read more

Collection Storage and Transfer of Data In Belgium


Channel Islands

Read more

The GDPR and The Channel Islands


France

Read more

New Investigation Program of The French CNIL For 2018


Italy

Read more

Italian Privacy Law Integrating the GDPR Adopted, With Some Concerns!


Lithuania

Read more

Lithuania Adopts New Law on Legal Protection of Personal Data


 The Netherlands

Read more

GDPR Compliance In The Benelux, Let The Controls Begin!


 Turkey

Read more

An Overview of Turkish Data Protection Rules From Criminal Law Perspective


 United Kingdom

Read more

Ban for City Associate Who Inflated Exam Grades on CV

Half of London’s Construction Employees Not from Britain

Criminal Record Check Did Not Breach Man’s Human Rights, Rules Supreme Court

Criminal Record Requests Could Be Breaching GDPR, Warns Charity

Fake NHS Boss Ordered to Sell Boat To Repay Earnings 

Paperless Immigration System Requires Employers to Embrace New Way of Working

What BREXIT Impacted Companies Need to Be Doing Now

Convicted Paedophile Monk Taught at University of Oxford for 12 Years After Being Banned from the Profession 

North America

 Canada

Read more

Cannabis Act Receives Royal Assent

Court of Appeal Reinstates Employee After Improper Drug Testing

How Will the GDPR Affect Canadian Businesses?

Human Rights Tribunal of Ontario Creates New Rule for Employers   Regarding Citizenship Based Recruitment Criteria

Legislated Drug Testing in The Workplace

Will Your Workplace Drug Policies and Procedures Go Up In Smoke When Recreational Marijuana Becomes Legalized In Canada 

Cannabis Testing and Employee Dismissal: Is Your Policy Ready?

Background Checks by Province: What Employers Need to Know

Supreme Court Upholds Termination for Breach of Drug and Alcohol Policy


 

 United States

Read more

California Provides Guidance Regarding Its Salary History Ban

Certificate of Relief Reducing Employer Exposure for Hiring Employees with Certain Criminal Convictions

Job Applicants with Past Drug Addiction Protected Under the ADA

Social Security Administration to Resume Social Security Mismatch Letter Notification Program in 2019

South Carolina’s Expansion of its Criminal History Expungement Laws

California Supremes Offer Compliance Guidance for Background Checks

Court Dismisses Background Check Lawsuit Against Sandoval, Laxalt

Employer Lessons in Dealing with FCRA Disclosure Claims

Evaluating and Challenging Standing in Fair Credit Reporting Act Actions

Oregon Court Dismisses FCRA Class Claim Against Employer 

Playing a Losing Hand: District Court Dismisses FCRA Disclosure Claim Against Casino in Absence of Concrete Injury

South Carolina’s Expansion of its Criminal History Expungement Laws

San Jose: Youth Soccer Groups to Pay $8.2 Million to Settle Sex-Abuse Lawsuit Over Coach Screening

Form I-9 Immigration and Employment Law Alert: The Time is Now for a Proactive Audit

Baby It’s Cold Outside: ICE I-9 Audits Increase Over 100 Percent 

New Jersey Federal Court: Employer Need Not Waive Drug Test for Medical Marijuana User

New Jersey Mandates Drug Testing of Direct Support Staff

Poppy Seed Bagel to Blame After Woman Tests Positive for Opiates During Labor

Asking Applicants About Salary History Now Banned in Massachusetts and Vermont, Connecticut to Follow 

Hawaii Prohibits Employers from Asking Job Applicants About Salary History

Increased Protections for Employers Answering Reference Requests

California Attempts to Clarify Salary History Ban Legislation

NJ Appellate Court: You Have the Right to Obtain Public Records Even If You Live Out of State

Pepsi Background Check Class Action Settlement

Consumer Reporting Agency Cannot Snuff Out Adverse Action Claim at Pleadings Stage

FCRA Class Action Dismissed by Missouri Court of Appeals for Lack of Standing

Georgia Targets Elder Abuse with Tough New Long-Term Care Background Check Law

NY Implements New Regulation Applicable to Consumer Credit Reporting Agencies

What Vermont’s Legalization of Recreational Marijuana Means for Employers

Oklahoma Became the 30th State to Pass a Medical Marijuana Law

Iowa Will Permit Employers to Have a Lower Standard for Positive Alcohol Tests July 1, 2018

Reasonable Suspicion Justifies Drug Testing of Teacher

Employer Drug-Testing in Smoklahoma

Chicago Introduces Data Protection Ordinance


 

Worldwide

 

Asia Pacific

Australia

Everyone Lies in Their Job Application…So Can I Fire Them?

What rights does an employer have when it discovers that an employee never completed his degree or has lied on his job application? A recent decision by the Fair Work Commission, ‘Charles Tham v Hertz Australia Pty Limited T/A Hertz’ is useful guidance for employers who detect – even after some period of time, that an employee has been deliberately dishonest in their job application. Given that the performance of most (if not all) positions requires the relevant employee to act honestly, the case supports the view that an employer will be justified in taking firm action where dishonesty in a job application is subsequently discovered, even if the misrepresentation does not relate to the qualifications or skills required to perform the role.

Read more

The AHRC and Criminal Record Discrimination: A Toothless Tiger

A recent AHRC report into discrimination in employment on the basis of a previous criminal record, ‘BE v Suncorp Group Ltd [2018] AusHRC 121’, has garnered significant media attention and community debate regarding discrimination on the basis of criminal records. The case shows that unlike an order of a tribunal or court, an employer has the right to decline to implement a recommendation of the AHRC relating to criminal record discrimination.

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  lied  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%
  • 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


India

E-Hiring Still Needs Reference Checks  

Hiring has long gone digital and companies are adopting new strategies of assessing applicants, the previous tradition of referencing exams continues to be robust even as of late, with a majority of businesses rejecting applicants whose reference exams didn’t meet expectations. In a study of HR managers/leaders via recruitment corporate Antal International, 69% of respondents stated they would not hire a candidate whose reference check is not up to expectations. Antal International India managing director Joseph Devasia said, “This survey highlights the human component within the hiring procedure. Our studies suggest that employers nonetheless weigh the tips bought by way of reference exams to provide themselves the additional validation they want before they make the hiring resolution. Bad hiring decisions can be costly to firms and risk can be reduced if exams results are checked.”

Read more

GDPR Effects on India

What does GDPR mean for companies in India? Regardless of their location, organisations processing personal data of individuals from the EU or organisations having a presence in the EU must be GDPR compliant. Indian organisations also need to upgrade their technology, as well as practices and introduce data encryption modules. Most organizations will need to, if they haven’t already, update their privacy policies and implement sufficient safeguards, as required under the GDPR. They will also need to understand the rights of the data subject.

Read more

Here Are A Few Tips For Employers Must Know To Comply With Privacy Laws In India

Technology has blurred the lines between professional and the personal space of an individual. Is employee surveillance by companies in India legal? While labor laws in India are mostly employee-friendly, none of them deal with the privacy rights of employees. Therefore, an employer needs to receive consent and then collect and store personal information of employees as well as potential candidates/recruits. Some of this information such as password, financial information, physical, health condition, biometric information, etc. qualifies as sensitive personal data (SDPI) defined under the SDPI Rules and needs specific compliances by organizations. In addition, as long as such surveillance is for legitimate reasons and reasonable, and does not conflict with the employee’s personal space and privacy, the law would uphold the same.

Read more

India Has 277 Fake Engineering Colleges, Delhi Highest With 66

There are as many as 277 fake engineering colleges functioning in India, and Delhi tops the list with 66 institutes that offer fake engineering and technical courses. According to a document by Minister of State Human Resource Development Officer Satya Pal Singh, besides the national capital, Telangana and West Bengal have 35 and 27 fake technical institutes, respectively. The list also includes 23 colleges in Karnataka, 22 colleges in Uttar Pradesh, 18 colleges in Haryana, 16 colleges in Maharashtra, 11 in Tamil Nadu. The instances of engineering colleges running their courses without the approval of All India Council for Technical Education (AICTE) have been directed to take necessary AICTE approval, or they will be shut down.

Read more

India Releases Draft Personal Data Protection Regulation

India has released its Personal Data Protection Bill, 2018, the country’s first comprehensive data protection regulation. The proposed bill will likely be introduced in Parliament this year. The proposed bill outlines requirements and limitations for the lawful collection and processing of personal data and sensitive personal data. As well as defining personal data and sensitive data, and it also outlines violations, which is two percent of global annual turnover of the preceding financial year. India’s Ministry of Electronics and Information Technology invites public comment through September 10, 2018.

Read more

India’s Telecom Regulator Recommends Stricter Data Security Rules

India’s telecom regulator has said the existing framework for protection of personal data by companies and service providers was insufficient and recommended stricter rules to tackle data breaches. The Telecom Regulatory Authority of India (TRAI) also said entities controlling and processing user data do not have primary rights over that data. The recommendations on privacy, security and ownership of data were provided to the federal government’s Department of Telecommunications, which drafts the final policy.  “All entities in the digital eco-system, which control or process the data, should restrain from using metadata to identify the individual users,” said TRAI.

Read more


South Korea


South Korea – Government Cuts Jobs Outlook and Lowers Growth Forecast For H2 2018

A total of 180,000 jobs are expected to be created in South Korea in the second half of 2018, a slowdown from the previous year partly due to industrial restructuring and falling working age population, according to data from the Ministry of Strategy and Finance. The Ministry also announced that annual growth of 2.9% is expected, a slowdown from the previous year. The slowdown is due to weak exports and consumption amid global trade conflicts and high oil prices. Meanwhile, South Korea’s employment rate is expected to improve from 66.6% to 66.9% in the second half of 2018.

Read more

Europe

Europe

The European Union and Japan Agreed to Create the World’s Largest Area of Safe Data Flows

The EU and Japan have agreed to recognize each other’s data protection systems as ‘equivalent’, which will allow data to flow safely between the EU and Japan. Each side will now launch internal procedures. For the EU, this involves obtaining an opinion from the European Data Protection Board (EDPB) and the green light from a committee of representatives of the EU Member States. Once this procedure is complete, the Commission will adopt the adequacy decision on Japan. Věra Jourová, Commissioner for Justice, Consumers and Gender Equality, said, “This agreement will allow for data to travel safely between us to the benefit of both our citizens and our economies. I am fully confident that by working together, we can shape the global standards for data protection and show common leadership in this important area.”

Read more


Belgium

Collection Storage and Transfer of Data In Belgium

In what circumstances can personal data be collected, stored and processed in Belgium? Thomas Daenens and Steven De Schrijver from Astrea discuss how the collection of personal data must be transparent.  The person wishing to collect the data must clearly state the exact purpose for which the data will be collected and the data controller cannot obtain more data than is required for that purpose.  They also discuss the limits or restrictions on the period for which an organization may (or must) retain records; and more. 

Read more


The Channel Islands


The GDPR and The Channel Islands

Alexandra Gill and Huw Thomas of firm Carey Olsen discuss how personal data is critical to the economy of the Channel Islands, as it has strong finance and tourism sectors that hold and process large amounts of personal data. Neither Guernsey nor Jersey are members of the EU, although at present they have a limited relationship with the EU (along with the Isle of Man). Historically both Guernsey and Jersey have taken great care to ensure that their data protection regimes provide standards of protection for personal data which are equivalent to those in force within the EU. With the advent of the GDPR, those standards are changing significantly.

Read more


France

New Investigation Program of The French CNIL For 2018

The French data protection authority (CNIL) has published its annual investigation program for 2018, and the report indicates that the CNIL intends to conduct more than 300 investigations which will focus on verifying GDPR compliance. It will investigate whether organizations are in compliance with the new obligations of the GDPR, including the right to portability and DPIAs. The CNIL will also verify compliance with preexisting data protection rules and principles under the French data protection regulation, in addition to the adequacy of the data provided and collected, the information of users, the way in which data is stored and retained, as well as security measures.

Read more


Italy

Italian Privacy Law Integrating The GDPR Adopted, With Some Concerns! 

The Italian Board of Ministries recently approved the Italian privacy law has been amended to align it to GDPR, and thus might include confusing text that may contain mistakes and cause confusion. In addition, there will likely be uncertainty on which decisions/authorizations are actually compatible with GDPR, so companies may need to conduct an element of “guess work” and take on additional obligations in order to be safe.

Read more


Lithuania


Lithuania Adopts New Law on Legal Protection of Personal Data

The Lithuanian Parliament passed a Law on Legal Protection of Personal Data on June 30, which went into effect on July 16. The law, which consists of 35 articles, includes notable provisions such as territorial scope, a national identification number, personal data and freedom of expression, processing in the context of employment, child’s digital consent, powers of the supervisory authorities, certification and more. Many important questions, including the processing operations requiring a mandatory DPIA, a procedure for a prior consultation with the DPA, and the requirements for certification bodies, will be addressed in rules that are yet to be adopted by the supervisory authorities.

Read more 


The Netherlands


GDPR Compliance In The Benelux, Let The Controls Begin!

Under GDPR compliance, the Dutch Data protection authority recently examined 30 companies and their internal records. The companies were selected at random and are active in various sectors, including construction, hotel, financial services and more. Stéphanie De Smedt, Florence d'Ath and Joanne Zaaijer of Loyens & Loeff discuss how more than two years after the adoption of GDPR, and almost two months after its effective application date, it is now really time for companies to be able to show that they have done their homework, starting with a proper ‘data flow mapping exercise’ and internal recordings.

Read more


Turkey


An Overview of Turkish Data Protection Rules From Criminal Law Perspective

Although it seems that the GDPR’s focus is mostly on conformity process, there is also the criminal law aspect to examine. Criminal sanctions on data protection breaches date back further than the DPA and covers aspects such as illegal recording, distribution, receipt, transfer and non-destruction of personal data, which were already criminalized under the Criminal Code. Now, with the newborn provisions, the DPA has introduce the rules and principles for processing personal data and also refers to criminal liability in case of breaches of the law.  How these two laws will apply together should be considered.

Read more


United Kingdom

Ban For City Associate Who Inflated Exam Grades on CV

A solicitor at global firm DLA Piper has been accused of inflating her academic achievements and claiming to have received high marks in subjects she did not study. Ms. Bains allegedly claimed to have qualifications in six areas of law which she had not studied and inflated her grades in all but one of the subjects she did study. In her application to join DLA Piper she copied lines from the CV of two solicitors and claimed to have carried out work that was actually done by a Weightmans partner, a former firm for which she worked. She has since left DLA Piper. A DLA Piper spokesperson said: “Ms Bains left our firm in February 2016, a few months after she joined, following an internal investigation into this matter. Whilst regrettable for the individual concerned, we fully respect the decision of the SDT.”

Read more

Half of London’s Construction Employees Not From Britain

Britain’s leading employers’ group has accepted that Prime Minister Theresa May would need to impose controls on EU citizens working in the U.K. after Brexit, but new immigration rules must not stop companies from hiring staff. The Confederation of British Industry (CBI) noted that a careful balance needs to be struck, and that compulsory registration of EU citizens who enter the U.K. — which has not been required until now — would be an important step towards immigration control and public trust. In response, the government said it was considering a range of options to control its borders while continuing to attract and retain workers who benefit Britain.

Read more

Criminal Record Check Did Not Breach Man’s Human Rights, Rules Supreme Court

The Supreme Court ruled that a man did not have his human rights infringed upon when a criminal record check revealed to potential employers he had been acquitted of a crime. The man argued that his right to respect for private and family life – article 8 of the European Convention on Human Rights – had been breached when an Enhanced Criminal Record Certificate (ECRC) disclosed he had been charged with raping a 17-year-old woman, even though he was acquitted at a trial. ECRCs are required for people applying for certain types of roles, including work with children or vulnerable adults, teachers, social workers, and for taxi driving licenses.

Read more

Criminal Record Requests Could Be Breaching GDPR, Warns Charity

Employers could “struggle to justify” requests for criminal record details early in the recruitment process now General Data Protection Regulation (GDPR) is in force. Charity Nacro has warned that employers still requesting criminal record details at the start of the recruitment process may struggle to align their reasoning with GDPR. The charity has urged businesses to reconsider what information they ask for and, if it is necessary to request criminal record details, to only do so towards the end of the hiring process, when the candidate is being seriously considered. According to Nacro, more than 11 million people in the UK have a criminal record. Nacro has also been backing Business In The Community’s (BITC) Ban the Box campaign since it launched in 2013.

Read more

Fake NHS Boss Ordered To Sell Boat To Repay Earnings

Disgraced NHS executive Jon Andrewes, who lied his way into a string of top jobs has been ordered to sell his boat and cash in a pension plan to repay some of his fraudulent earnings. Ex-social worker Jon Andrewes invented fake degrees to land jobs running a hospice and two NHS trusts. He admitted deception and fraud and was jailed for two years in 2017. He must sell a half share in a Dutch barge, share his profit from the sale of the house in Topsham, as well as refund an insurance payout for a Seat Leon car, sell his premium bonds, and cash in a pension plan. He has completed his two-year sentence and is now out on license.

Read more

Paperless Immigration System Requires Employers To Embrace New Way Of Working

A paperless post-Brexit migration system could prove problematic for employers who have become accustomed to working with hard copy documents. A report, The progress of the UK’s negotiations on EU withdrawal: the rights of UK and EU citizens, noted that documents traditionally requested as part of citizenship checks, such as passports and biometric cards, were “understood” by employers and the proposed digital-only status system’s success depended on businesses “embracing a new way of working”. The Home Office has proposed making the settled status process as paperless as possible, issuing applicants with digital codes. Employers can enter codes into the Home Office website to confirm an applicant’s immigration status. Yet, opponents say some officers are mainly “paper based” and that issue could be made worse if the Home Office opted for a predominately app-based system.

Read more

What BREXIT Impacted Companies Need to Be Doing Now

For businesses that operate in the UK, the looming exit from the European Union presents several challenges for managing employees who are EU nationals. Most significantly, EU nationals will need additional, visa-like documentation to work in the UK after Brexit. Employers need to familiarize themselves with important dates and deadlines; conduct an audit of UK employees’ and host “Brexit clinics” in order for employees to provide guidance on the specific tasks that EU national employees will have to complete because of Brexit.

Read more

Convicted Paedophile Monk Taught at University of Oxford for 12 Years After Being Banned from the Profession

Although Father Bernard Green admitted to indecently assaulting a 13-year-old boy at a famous Roman Catholic public boarding school in 1995, he continued to teach at the University of Oxford for 12 years. Banned by the Department of Education (DfE) from unsupervised contact with individuals younger than 19, the Independent Inquiry into Child Sexual Abuse found that, during his 12 years there, he continued to download indecent images of children.

Read more

North America

Canada

Cannabis Act Receives Royal Assent; New Cannabis Regulations Released

Cannabis will be a legal product in Canada on October 17, 2018, albeit with rigorous regulatory restrictions, including highly restrictive packaging and advertising rules. Individuals 18 years or older may legally possess up to 30 grams of cannabis and grow up to four cannabis plants in their private residence. Permitted forms of cannabis will include dried, fresh and oils, with edibles likely to be added in a year. Cannabis accessories and services will also be regulated. In addition, Health Canada announced new regulations under the federal Cannabis Act that allows provisions for medical users to be able to access the product.

Read more

Court of Appeal Reinstates Employee After Improper Employer Drug Testing

The Court of Appeal of Newfoundland and Labrador recently denied an employer’s appeal regarding a grievance arbitration decision that it was improper to subject an employee to drug testing, and ordered that the employee be reinstated. The employer in ‘Hibernia Platform Employers’ Organization v. Communications, Energy and Paper Workers Union’ was found to have failed to properly assess all relevant legal factors, and their decision to test and terminate an employer was overruled on appeal. The employee tested positive for benzodiazepines and was terminated on the basis that he had violated the drug and alcohol policy. Yet, the employer did not have sufficient information on the drug test and failed to seek an explanation from the employee, among other factors. The decision is guidance to employers navigating the legal principles regarding employee drug testing.

Read more

How Will the GDPR Affect Canadian Businesses?

Although its broad scope may impose new privacy obligations on a larger number of Canadian businesses, the impact of GDPR in Canada is unlikely to be significant in the short term. The influence of EU privacy standards on how Canadian privacy laws are amended and interpreted in the longer term promises to have a more direct impact on Canadian businesses than GDPR itself. Still, organizations should bring their data handling practices in line with GDPR in order to avoid the risk of large fines and preserve their ability to conduct business with EU companies.

Read more

Human Rights Tribunal of OntarioCreates New Rule For Employers Regarding Citizenship Based Recruitment Criteria

In a decision, the Human Rights Tribunal of Ontario has found an employer who required job candidates to be either Canadian citizens or permanent residents liable for discrimination contrary to the Human Rights Code. The case involved an international student at McGill University who applied for an engineering job, yet lied about having Canadian citizenship or permanent residency and his offer was revoked. The Tribunal sided with him, noting that “permanence requirement” is discrimination based on the ground of “citizenship” and it is illegal for employers in Ontario to discriminate based on permanent ability to work in Canada.

Read more

Legislated Drug Testing In The Workplace

With the impending legalization of cannabis later this year, there has been growing concern from many employers regarding the potential implications of recreational drug use and impairment in the workplace. As Bill C-45 (the Cannabis Act) has weaved its way through the House and Senate in its various forms and iterations, employers are anxiously awaiting the federal government’s decision regarding the recommendations of various employer groups to permit limited mandatory workplace drug testing in connection with cannabis legislation.

For now, it appears that any amendments to Bill C-45 to address workplace drug testing will not be forthcoming. The federal government has, however, recently signaled that the door is not closed on revisiting the legislation and imposing mandatory drug testing for certain safety-sensitive jobs in the future.

Read more

Will Your Workplace Drug Policies And Procedures Go Up In Smoke When Recreational Marijuana Becomes Legalized In Canada

While the legalization of marijuana has been highly anticipated, employers must ensure that they are prepared for the transition. Do employees now have an absolute right to use marijuana in the workplace, and are employers bound to let them do so? The answer may be found in a decision by the Human Rights Tribunal of Ontario (HRTO), in the case of Aitchison v L & L Painting and Decorating Ltd. A worker was fired for smoking marijuana, and the decision confirmed that employees do not have an absolute right to use marijuana, medical or otherwise, in the workplace, and employers still have the right to implement policies, so long as they consider their duties regarding accommodation under the Ontario Human Rights Code.

Read more

Cannabis Testing and Employee Dismissal: Is Your Policy Ready?

October will take Canadian employers into unchartered territories when cannabis use becomes legalized. The big question for employers is the possible impairment of employees while performing the duties of his or her job. Because urinalysis testing can’t prove current impairment of an employee due to cannabis, supervisors and HR and occupational and safety committee members should be trained to recognize evidence of impairment, such as the smell of cannabis, unusual behavior, discoloration of the eyes, poor muscle coordination and delayed reaction times.

Read more

Background Checks by Province: What Employers Need to Know

While generally permissible in Canada, background checks can vary from province to province, the most widely used related to educational, employment, criminal and credit history of candidates. Employers should be prepared to approach the process slowly and carefully to ensure properly conducted background checks, avoiding employer liability. Conducting screening in accordance with provincial and federal law. Human rights legislation exists in each of the Canadian jurisdictions, while privacy statutes and obligations differ among the Canadian provinces when it comes to personal employee information.

Read more 

Supreme Court Upholds Termination for Breach of Drug and Alcohol Policy

The Supreme Court of Canada upheld the decisions of the Alberta Court of Appeal and Alberta Human Rights Tribunal in the case ‘Stewart v. Elk Valley Coal Corp’, finding that the termination of an employee with a cocaine addiction was valid. The Court determined that the employee’s breach of a Drug and Alcohol Policy – “No Free Accidents” – was the cause of his dismissal, rather than the addition itself. The policy requires employees to voluntarily come forward and disclose drug use before any incidents occurred to be given an opportunity for treatment. This employer-friendly ruling should not be seen as a blanket endorsement of terminations related to drug and/or alcohol use. Employers should create a well-drafted drug and alcohol policy, consider safety-sensitive positions within the workplace and construct well-drafted termination letters.

Read more


United States

LEGAL

California Provides Guidance Regarding Its Salary History Ban

In January, the Californian salary history ban (A.B. 168) went into effect, which prohibits employers from “seeking salary history information” from an applicant. Employers are also prohibited from relying on an applicant’s prior salary history “as a factor in determining whether to offer employment … or what salary to offer an applicant.” In July, Gov. Jerry Brown signed AB 2282, the Fair Pay Act Bill, which defines previously undefined terms like “unreasonable request,” “applicant” and “pay scale.” It also provides guidance on what questions an employer is permitted to ask during an interview and fortifies the delineation between applicants for employment and current employees. 

Read more 

Certificate of Relief Reducing Employer Exposure for Hiring Employees with Certain Criminal Convictions 

In an effort to assist individuals convicted of certain crimes during their reintegration into society, the North Carolina General Assembly enacted “An Act to Amend the Law Regarding a Certificate of Relief for Criminal Convictions” (the “Act”). Effective December 1, 2018, the Act allows any individual who is convicted of not more than three Class H or I felonies, and any amount in misdemeanors, to petition a court for a certificate of relief. In order to grant the petition, the court must find that the petitioner established sufficient evidence of six factors. 

Read more 

Job Applicants with Past Drug Addiction Protected Under the ADA 

As long as they have successfully completed a supervised drug rehabilitation program or are currently participating, employees and job applicants are protected under the Americans with Disabilities Act (ADA) based on past drug addiction. Various lawsuits have been filed by the Equal Employment Opportunity Commission (EEOC) against employers for discriminating against those who have been or are participants in supervised rehabilitation programs. In one such case, the EEOC is seeking back pay, compensatory and punitive damages and other relief for a former employee who was fired after a pre-employment drug and alcohol test came back with positive results. The employee became dependent on opioid pain medication after undergoing shoulder and arm surgery a few years before. 

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Social Security Administration to Resume Social Security Mismatch Letter Notification Program in 2019

The Social Security Administration (SSA) will restart its mismatch letter notification program. Formally titled “Employer Correction Requests,” the SSA notifies employers that the social security number (SSN) and name reported for one or more employees does not match SSA records. The letters will instruct employers to register for the Business Services Online (BSO) database, which contains the Employer Report Status and includes steps on how to correct mismatches. 

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South Carolina’s Expansion of its Criminal History Expungement Laws 

The South Carolina General Assembly recently passed legislation that will expand the state’s current expungement law and allow individuals to more easily remove criminal convictions from their records. While “ban the box” laws prohibit employers from asking applicants about their criminal record on job applications, the new law will make it easier for persons to erase certain convictions from their records. The move is intended to expand the potential workforce in the state by removing employment barriers for offenders. The new legislation provides immunity to employers with respect to any administrative claim or lawsuit related to an employee’s expunged conviction. 

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California Supremes Offer Compliance Guidance for Background Checks 

The California Supreme Court recently ruled in favor of current and former bus drivers who claimed their employer performed unauthorized background checks as they did not inform employees about investigative reports. The state Supreme Court in ‘Connor v. First Student’ addressed the Investigative Consumer Reporting Agencies Act (ICRAA) and the Consumer Credit Reporting Agencies Act (CCRAA), rejecting arguments that the ICRAA was unconstitutionally vague. Associate Justice Ming W. Chin stated that the court agreed with the Court of Appeal and found that “potential employers can comply with both statutes without undermining the purpose of either.” 

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Court Dismisses Background Check Lawsuit Against Sandoval, Laxalt 

A judge recently dismissed a lawsuit claiming that Nevada Gov. Brian Sandoval and Attorney General Adam Laxait did not do enough to enforce a law to expand background checks on gun sales. The Background Act Check, approved by voters in 2016, was never implemented because Laxait determined that it could not be enforced. Known as Question 1, the law would require background checks on private-party gun transfers. The FBI, however, said that it would not conduct the screening because a “state cannot enforce how federal resources are used.” 

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Employer Lessons in Dealing with FCRA Disclosure Claims 

A putative class action complaint was recently dismissed by the U.S. District Court for the District of Oregon, which alleged that a potential employer violated the disclosure and pre-adverse action notification requirements of the Fair Credit Reporting Act (FCRA) in ‘Walker v. Fred Meyer Inc’.

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Evaluating and Challenging Standing in Fair Credit Reporting Act Actions 

In ‘Dutta v. State Farm Mutual Automobile Insurance Company’, Dutta alleged that State Farm was in violation of the Fair Credit Reporting Act when it failed to provide him with notice of his Fair Credit Reporting Act (FCRA) rights and a copy of his consumer report prior to denying his employment application. The district court granted State Farm’s motion for summary judgement on the ground that Dutta failed to establish an injury-in-fact and thus lacked standing. On appeal, the Ninth Circuit agreed with the ruling. The case highlights the importance of evaluating and potentially challenging a plaintiff’s standing in a FCRA action. 

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Oregon Court Dismisses FCRA Class Claim Against Employer 

The United States District Court in Oregon recently dismissed a plaintiff’s class action complaint that a potential employer violated the disclosure and pre-adverse action notification requirements of the Fair Credit Reporting Act (FCRA). Plaintiff Daniel Walker received a pre-adverse action notice from employer Fred Meyer, Inc., explaining that he could contact the background screening company about issues contained in the report. Walker claimed the consumer report disclosure language was overshadowed by information about investigative consumer reports, but the Court found the documents to be clearly defined. In addition, the Court found that its presentation of the disclosure along with the authorization “did not destroy the stand-alone character of the disclosure.” 

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Playing a Losing Hand: District Court Dismisses FCRA Disclosure Claim Against Casino in Absence of Concrete Injury

The District Court for the District of Nevada recently found that a plaintiff cannot bring a “solely of the disclosure” claim in federal court when he or she has suffered no actual harm separate from the perceived failure to properly format the disclosure. In ‘Williams v. TLC Casino Enters’, the plaintiff alleged that TLC Casino Enterprises violated the Fair Credit Reporting Act (FCRA) by obtaining a consumer report on her without providing her with a “stand-alone document of a legal disclosure.” The business moved to dismiss the complaint for lack of standing, arguing that the claim amounted to “nothing more than a bare procedural violation of the FCRA.” The court agreed with TLC Casino Enterprises. 

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South Carolina’s Expansion of its Criminal History Expungement Laws 

The South Carolina General Assembly recently passed legislation that will expand the state’s current expungement law and allow individuals to more easily remove criminal convictions from their records. Laws such as “ban-the-box” give offenders an improved chance to reenter the workforce. Although the state doesn’t have a ban-the-box law, the new law will make it easier for persons to erase convictions, removes the “first-offense” requirement and allows persons to erase multiple convictions that are connected to the same hearing. It also allows offenders to expunge first-offense simple drug possession and possession of drugs with intent to distribute crimes. 

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San Jose: Youth Soccer Groups to Pay $8.2 Million to Settle Sex-Abuse Lawsuit Over Coach Screening 

Failure to properly screen a Sunnyvale soccer coach resulted in the sexual abuse of a then-13-year old girl. The U.S. Youth Soccer Association and its Northern California affiliate recently agreed to pay $8.2 million to settle the former player’s lawsuit. The settlement has been called one of the largest of its kind and attorney Stephen J. Estey hopes it sends a “message to sports leagues about their duty to protect the children in their care.” A domestic violence conviction would have been revealed had a background check been properly conducted. The coach, Emanuele Fabrizio, pleaded guilty in 2012 to one count of continuous sexual abuse of a child and one count of lewd and lascivious acts on a child under 14. 

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Form I-9 Immigration and Employment Law Alert: The Time is Now for a Proactive Audit 

With Immigration and Customs Enforcement (ICE) workplace audits on the rise, especially in California, employers are advised to make the I-9 form a top priority. Under federal law, all employers in the United States are required to complete this form to verify the identity and employment eligibility of new hires. Section 1 must be completed at the time of hire and Section 2 within three business days. These important documents must be retained for three years after the date of hire. More than 50 percent, however, are shown to have errors, either being incomplete, incorrect or outdated. Employers are advised to work with counsel to conduct a proactive internal audit, ensuring HR representatives are well trained, and ensuring electronic files are properly stored, among other items. 

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Baby It’s Cold Outside: ICE I-9 Audits Increase Over 100 Percent 

With Form I-9 inspections by Immigration and Customs Enforcement (ICE) increasing by more than 100 percent, employers are advised to make appropriate compliance efforts to avoid monetary fines, branding exposure and other forms of liability. In July, ICE released information to the press that its Homeland Security Investigations (HSI) division had completed the second phase of a nationwide operation, serving 2,738 I-9 Notices of Inspection (NOIs). The first phase saw 2,450 issued earlier this year. Businesses should take these NOIs seriously and avoid waiving the three-day right to produce the I-9. When the audit has been completed, it is important to create a post-NOI checklist that includes proactive plans. 

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New Jersey Federal Court: Employer Need Not Waive Drug Gest for Medical Marijuana User 

Despite the legalization of medical marijuana in several states, the drug still remains a Schedule 1 illegal substance. Employees, however, are left wondering how the new laws affect rights under the Americans with Disabilities Act (ADA). For instance, New Jersey’s Compassionate Use Medical Marijuana Act (CUMMA) does not permit the use of medical marijuana in the workplace, as stated by the federal District Court in a recent case. Even so, employers may want to consider initiating the interactive process to determine if a reasonable accommodation or alternative to its drug-free policy exists.  

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New Jersey Mandates Drug Testing of Direct Support Staff 

Effective in May, applicants and employees working in any New Jersey Department of Human Services (DHS) funded, licensed or regulated program serving adults with developmental disabilities are subject to mandatory drug testing. The ‘Stephen Komninos’ Law, New Jersey Public Law 2017, Chapter 238, which applies to “direct care staff members” also includes volunteers. Drug tests will be conducted for pre-employment, at random, or “for cause” or reasonable suspicion.  

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Poppy Seed Bagel to Blame After Woman Tests Positive for Opiates During Labor 

 

While in labor with her daughter, Elizabeth Eden was reported to child services after opioids were found in her blood. The testing, which is used to “catch mothers who use illegal drugs,” according to Dr. Judith Rossiter-Pratt, the obstetrics and gynecology department chief at St. Joseph Medical Center, caused the new mother to be held in the hospital for five days. She also was required to allow a caseworker to check her home. The positive results, however, were found to be due to a poppy seed bagel that was consumed for breakfast that morning. 

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Asking Applicants About Salary History Now Banned in Massachusetts and Vermont, Connecticut to Follow

Massachusetts and Vermont now will prohibit employers from inquiring into or seeking prospective employees’ salary history. Connecticut soon will follow, while Maine, New Hampshire and Rhode Island are considering similar measures. In addition to the prohibition, the two states will not allow employers to require that an applicant’s current or prior salary history meet certain criteria, and Vermont law also prohibits employers from determining whether to interview an applicant based on the applicant’s current or past compensation. To comply, employers should review and revise hiring documents, ensure that all applicants know that they are not required to disclose salary history, they must train personnel involved in the hiring process on restrictions imposed by the new laws, and take a fresh look at current compensation practices.  

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Hawaii Prohibits Employers from Asking Job Applicants About Salary History 

Hawaii Governor David Y. Ige recently signed the Senate Bill 2351 into law, which will prohibit prospective employees in the state from requesting or considering the wage or salary history of job applicants as part of an employment application process or compensation offer. The law will take effect Jan. 1, 2019. 

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Increased Protections for Employers Answering Reference Requests 

California Governor Jerry Brown recently signed into law the AB 2770. The bill, which will go into effect Jan. 1, 2019, protects employers from defamation claims when advising a prospective employer that the applicant was the subject of a credible sexual harassment claim. Currently, Employers are prohibited from non-malicious references regarding the job performance or qualifications of an applicant for employment and the current law also authorizes an employer to answer whether the employer would rehire an employee. 

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California Attempts to Clarify Salary History Ban Legislation 

California Governor Brown recently signed into law Assembly Bill No. 2282, which is intended to clarify previously passed legislation that prohibits inquiries into an applicant’s salary history. AB 2282 clarifies the term “applicant” to mean an individual who seeks employment with the employer, not a current employee. In addition, “pay scale” has been defined as a salary or hourly wage range that does not include bonuses or equity ranges. “Reasonable request” has been defined as a request made after the applicant has completed the initial interview and AB 2282 clarifies that employers may ask about an applicant’s salary expectations for the position.  

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NJ Appellate Court: You Have the Right to Obtain Public Records Even If You Live Out of State 

Under New Jersey’s Open Public Records Act (OPRA), the term “citizens” applies to the general public and now, thanks to a decision of the New Jersey Appellate Division, individuals are not limited to the state. The ruling comes after an out-of-state citizen filed an OPRA lawsuit in Burlington County after the Atlantic County Municipal Joint Insurance Fund refused to provide requested records about legal bills. The judge in the case concluded that the right to request public records under OPRA is not limited to NJ citizens.  

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Pepsi Background Check Class Action Settlement 

Individuals who had a background check run between June 19, 2015, and Oct. 2, 2017, by Bottling Group LLC, Grayhawk Leasing LLC or New Bern Transport Co., could be entitled to a cash payment from a $1.19 million Fair Credit Reporting Act (FCRA) settlement. A former employee filed the class action lawsuit in 2017, claiming the company violated the FCRA by failing to make necessary disclosures prior to obtaining background checks for employee purposes. Eligible class action members include:

  • job applicants for whom Pepsi procured a background report for employment purposes from June 19, 2015, through Dec. 1, 2016
  • Employees subject to Department of Transportation (DOT) background checks and for whom Pepsi procured a background report for employment purposes from June 19, 2015, through Sept.4, 2017
  • All other employees for whom Pepsi procured a background report for employment purposes from June 19, 2015, through Oct. 2, 2017

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Consumer Reporting Agency Cannot Snuff Out Adverse Action Claim at Pleadings Stage 

Although it is the responsibility of the employer to provide potential candidates with a copy of the report and a summary of rights, the District Court for the District of Delaware reached a conflicting conclusion in the pleadings stage in ‘Doe v. Trinity Logistics’. In the case, the plaintiff applying for a job at Trinity Logistics disclosed that her consumer report contained adverse information. When consumer reporting agency Pinkerton Consulting and Investigations failed to provide a copy of the report and a summary of rights before Trinity took adverse action, the plaintiff argued that Pinkerton violated the Fair Credit Reporting Act’s (FCRA) obligations. According to the court, the plaintiff adequately pled that Pinkerton and Trinity had “shared decision-making responsibility.” 

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FCRA Class Action Dismissed by Missouri Court of Appeals for Lack of Standing 

The plaintiff in a class action filed in Cole County Circuit Court against Kelly Services claimed that the company violated the Fair Credit Reporting Act when it included more information in its disclosure form than was allowed and by not providing him with either the report or a summary of his rights. Although it was dismissed in 2016 by the federal court under the U.S. Supreme Court’s ‘Spokeo v. Robins’ decision, it was remanded back to state court, where a three-judge panel of the Missouri Court of Appeals upheld the lower court’s ruling that the plaintiff lacked standing to pursue his claim since he could not prove concrete and actual injury. 

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Georgia Targets Elder Abuse with Tough New Long-Term Care Background Check Law 

The “Georgia Long-Term Care Background Check Program,” which will take effect on Oct. 1, 2019, is intended to promote public safety for a growing and vulnerable aging population. The new law will require care workers with “direct access” to seniors in long-term care facilities to pass a national background check. A fingerprinting requirement also is expected to go into effect in January 2021. The law applies to owners, applicants for employment, and employees providing care or owning a personal care home, assisted living community, private home care provider, home health agency, hospice care, nursing home, skilled nursing facility, or adult day-care. Those who fail to comply could face civil monetary penalties of $500 for each day that a violation occurs (up to $10,000).

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NY Implements New Regulation Applicable to Consumer Credit Reporting Agencies 

Credit reporting agencies with significant operations in New York now will be required to register with the New York Department of Financial Services (NYDFS). Covered agencies must register on or before September 15, 2018, or within 15 days of the date they become subject to the regulation’s requirements. One or more officers or directors must be designated to be responsible for compliance under the rules of New York. Beginning in 2019, each consumer credit reporting agency registered in New York must report information requested by the DFS Superintendent on or before July 1 of each year. 

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What Vermont’s Legalization of Recreational Marijuana Means for Employers 

Vermont’s recreational marijuana law that went into effect in July has lifted penalties for individuals possessing limited amounts of marijuana. The new law doesn’t require employers to tolerate marijuana possession or use in the workplace. The Guide to Vermont’s Laws on Marijuana in the Workplace, released by the Vermont Office of the Attorney General, provides employers an overview of the changes regarding marijuana laws and summarizes existing employment laws relating to drug testing in the workplace. In it, readers can learn about the recreational marijuana law, medical marijuana law, the state’s Fair Employment Practices Act (VFEPA), and the restrictive drug testing law. 

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Oklahoma Became the 30th State to Pass a Medical Marijuana Law

Voters in Oklahoma approved a measure on June 26, 2018, that gives physicians broad discretion to prescribe medical marijuana. It also restricts employers from taking action against applicants or employees solely based on their status as a medical marijuana license holder or due to a positive drug test result. Medical marijuana license holders in the state will be permitted to legally possess up to three ounces of marijuana on their person and up to eight ounces in their residence, along with specified amounts of edible marijuana, concentrated marijuana and plants. Although the law permits issuance of a license to applicants 18 or older, it does allow those younger than 18 to obtain a license under certain circumstances. Unlike most states who have signed similar laws, there are no “qualifying medical conditions” in Oklahoma. 

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Iowa Will Permit Employers to Have a Lower Standard for Positive Alcohol Tests July 1, 2018 

A uniform requirement for employers that want to conduct alcohol or drug testing of applicants or employees states that all testing must be done pursuant to a written policy that has been provided in advance to every employee subject to testing, and is available for review by applicants and employees. In March, Governor Kim Reynolds signed House File 2383, which amends Iowa Code Section 730.5(9)(3) to lower the minimum level of alcohol concentration Iowa’s private employers can use for a positive alcohol test from .04 to .02 grams of alcohol per 210 liters of breath. 

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Reasonable Suspicion Justifies Drug Testing of Teacher 

When a school district received reliable evidence that a teacher may be under the influence of drugs while on the job, it may command the teacher to submit to a drug test. If the teacher tests positive for drugs, the school district may terminate the teacher for violation of school district policy and immortality under Section 1122 of the Public School Code. Such was the case of teacher Timothy Metz, a tenured middle school physical education teacher at Bethlehem Area School District, who was terminated after he tested positive for cocaine. Metz was asked to submit to a drug test after the school district received a letter stating that he tested positive for cocaine metabolites in a court-ordered drug test. The court found that the district had reasonable submission to order an additional urinalysis drug test and, therefore, the termination was valid. 

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Employer Drug-Testing in Smoklahoma

Although Oklahoma’s medical marijuana laws dictate that an employer cannot discriminate against a person in hiring or termination or penalize a person due to the person’s medical marijuana status or as a result of a positive drug test there have been little changes to existing random drug testing policies. In fact, the law doesn’t prevent employers form taking into consideration other factors such as any negligent work behavior or bad performance, any injuries the employee has caused in the workplace or what type of work is being performed. In any event, employers who choose not to hire or choose to terminate or penalize a marijuana-licensed employee must prove that the rest results were not the only deciding factor.  

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Chicago Introduces Data Protection Ordinance 

The Personal Data Collection and Protection Ordinance recently was introduced to the Chicago City Council and aims to require businesses to adhere to several data collection and sharing regulations. Key provisions include:

1. Opt-in consent to use and share personal information

2. Security breach notification

3. Data broker registration

4. Mobile devices with location services functionality

5. Location-enabled mobile applications. 

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