Verifile International Newsletter Issue #10
21 Apr 2015
Welcome to our April edition of the International Newsletter 2015 which we hope you find helpful in keeping up to date.
UK Identity Checks
In our previous newsletter we’ve announced a new instant UK Identity Check and today we are pleased to confirm that this new check has now been added to all clients. This new check is a great way to verify an identity of a UK resident. The results are delivered instantly within seconds.
This online identity check uses a wide range of databases to establish if the candidate's identity is used in the UK. Here are some of them:
- Electoral roll
- Telephone directory
- Court and insolvency records
- Bank accounts, credit cards and other lenders
- Fraud database
- Deceased register
We offer the check in two formats: Standard and AML (Anti-Money Laundering). The main difference between these two options is the use of the full electoral roll under the AML version. The price is the same but to be able to use the AML version the client must be subject to Anti-Money Laundering legislation. As a result of this, clients that also need to verify their own clients' identity such as lawyers and accountants can use this service with this aim in mind and not just for employment purposes. If you wish to use the AML version please get in touch and ask for it as we will only make it available to those clients that have legal justification.
Clients who currently do not have this check as part of their package are welcome to get in touch and ask us to incorporate it into their package. A sample report for this check can be seen here.
We recently launched a new feature which allows us to create packages or sets of checks that you frequently order. This speeds up placing candidate entry orders by prepopulating the checks that you require, meaning you no longer have to choose each check one by one.
If you don’t already have pre-set packages or sets of checks available and would like them, please get in touch to request this.
We’ll be shortly launching this for orders placed using the ‘Place an order’ option too. Watch this space!
Investigative Directorship Checks
Our Investigative Directorship results have changed. You will find them as a pdf report in the attachments section of our system. We are now able to provide a little extra information about the status of the company that the candidate is or was a director of, and in many cases, we can confirm the role that the candidate undertook. We hope that the new format will be easy to read.
Peter joined Verifile in October 2009 as an “Incoming Administrator” at which time Verifile were a company of 15 based at the i-Lab on the Priory Business Park. The company was very different then mainly comprising of an inbound and an outbound team. Peter was responsible for managing the inbox and processing references. As Peter developed within the role he naturally became more inquisitive and started to question data and information as he noticed errors and inconsistences. The ability to challenge and question “the facts” is what drew Peter to apply for a role at Verifile. After finishing university, where Peter studied French and German, he wanted to find a role where he could use his language skills and liked the idea of combatting fraud through data and investigation. Peter’s accuracy and attention to detail served him well and he was soon asked to get involved with quality assurance and became QA Manager, with the responsibility of ensuring that client reports were 100% accurate and providing feedback for employees within the company.
Peter says “I pride myself on getting things right first time and set myself very high standards”.
Today, Peter is the Processing and QA Manager, and is currently “caretaker manager” of the Admin and Background Team. Peter says “If you like the idea and concept of what we do, you will find it rewarding. There is a lot to learn and it takes time, the work is interesting and important - it’s based on establishing facts and allowing clients to make an informed decision.”
Looking to the future, Peter is excited about emerging technology which will allow our service to become even more efficient and streamlined – Watch this space!
In this issue of the International Newsletter:
| WORLDWIDE NEWS
- Hogan Lovells Global Bribery and Corruption Review
- 2015: The Turning Point for Data Privacy Regulation in Asia?
- APEC Privacy Committee Meets to Discuss CBPR System
- Health Practitioners Face New International Criminal History Check
- China Clarifies Requirements for Companies Regarding Consumers' Personal Information
- False Information Supplied by the Employee and Termination of Employment Contract
- Prosecutor to Put Job-Related Criminal Record Online
- Employment Market Bullish in 2015
- Background Check of Cab Drivers in Mumbai: of 26,901 Cabbies Only 836 Get Green Signal
- Corporate Frauds in India on the Rise
- RPO Industry Set to Take-Off in 2015
- Country Background Screening Essentials
- Handbook on European Data Protection Law
- What Will Be the Impact of the New EU Data Protection Regulation on the UK’s Freedom of Information Act?
- Government Adopts Draft Law Regarding Enforcement of Data Protection Law by Consumer Protection Associations
- Germany Wants to Introduce Class Actions for Privacy Violations
- Changes to the Polish Data Protection Act May Affect Your Compliance Status
- Scotland Calls for Regular Checks After Agency Worker Lorry Driver Falls Asleep at the Wheel
- Job Creation Back Up to Pre-Recession Levels
- Onfido Raises $4.5 Million to Take its Automated Background Checks Global
- Master Forgers Made Thousands of Fake Identity Documents to Order
- Durham Police Unveil New Guidelines for Criminal Background Checks
- Background Checking in Canada
- Medical Marihuana in the Workplace
- 20% of Population Has a Criminal Conviction
- 2013: Highest Rate of Employee Theft in 6 Years
- When, If Ever, Does Employment Discrimination Against Ex-Offenders Violate Title VII
- FTC Shuts Down Diploma Mill Operators
- Advancing a Fair Chance Hiring Agenda
- Class Action Trends in Virginia: Employment Background Reports
- Another FCRA Class Action Lawsuit Crafted Against Michaels
- FCRA Class Action Lawsuit Filed Against Pizza Hut
- Dot Every "i" in Iowa to Comply with Drug Testing Law
- Medical Marijuana Update
- E-Verify Begins Checking Nebraska Driver's License and ID Cards
- What Happens When An Employee Admits I-9 Documents Were Fraudulent
- Data Breach Notification Bills Introduced in House and Senate
- OTA Releases Guidelines on Privacy Assessment, Best Practices
- Brazil iIssues Data Protection Bill
HOGAN LOVELLS GLOBAL BRIBERY AND CORRUPTION REVIEW
Eight years ago, Hogan Lovells published their first year-end summary of Foreign Corrupt Practices Act (FCPA) developments as a short client alert, recapping key FCPA decisions of the prior year. The summary was global because, even as recently as eight years ago, the enforcement of anti-corruption laws was seen as a distinctly American issue. Yes, a few other countries had started talking about fighting corruption, but for the most part this was still just a theoretical discussion. Clearly, times have changed. While the U.S. still plays a key role in the global fight against corruption and bribery, it shares the stage with a host of other countries eager to flex their muscles in this critical regulatory space.
- DATA PROTECTION & PRIVACY -
2015: THE TURNING POINT FOR DATA PRIVACY REGULATION IN ASIA?
2014 was a very eventful year for data privacy regulation in Asia and a number of significant regulatory developments, in particular the implementation of new, comprehensive "European-style" privacy laws in Singapore and Malaysia, the amendment of China's consumer protection law to include data privacy principles and increased financial penalties in South Korea.
Equally importantly, there were significant data security and data privacy breaches and enforcement actions across the region in 2014, with privacy mishaps consistently featuring in Asian headlines. These developments have meant immediate consequences in the form of regulatory action, sanctions and adverse publicity for those investigated or found to be on the wrong side of the law. These high profile incidents are also proving to have a broader impact by raising public awareness of privacy issues to levels never before seen and emboldening regulatory authorities to take action.
Source Note: This article was first published in Data Protection Law & Policy in January 2015.
APEC PRIVACY COMMITTEE MEETS TO DISCUSS CBPR SYSTEM AND EU COOPERATION
The APEC Data Privacy Subgroup (DPS) and its parent committee, the Electronic Commerce Steering Group (ECSG), met for another round of negotiations and meetings. The principal focus of the meetings was implementing the APEC Cross-Border Privacy Rules (CBPR) system, developing a corollary APEC recognition mechanism for information processors, related work relevant to cross-border interoperability, and updating the APEC Privacy Framework. APEC needs to take steps to ensure the long-term financial sustainability of the CBPR’s governance and operations infrastructure as more APEC economies join the system and more companies seek CBPR (and soon PRP) certification.
HEALTH PRACTITIONERS FACE NEW INTERNATIONAL CRIMINAL HISTORY CHECK
The international criminal history of nurses, midwives and allied health professionals will go under the microscope for the first time. The Australian Health Practitioner Regulation Agency (AHPRA) has launched new safeguards to examine the international criminal records of some health practitioners. Under the new process, an AHPRA-approved supplier will verify the criminal history of certain practitioners. Previously, health professionals were asked to declare their international criminal history but there was no external verification process. Under the National Law, the 14 National Boards are required to review the criminal history of applicants who apply for registration as health practitioners in Australia. AHPRA CEO Martin Fletcher said the new process aims to strike a balance between public safety and regulatory burden for practitioners.
- DATA PROTECTION & PRIVACY -
CHINA CLARIFIES REQUIREMENTS FOR COMPANIES REGARDING CONSUMERS' PERSONAL INFORMATION
A new law in China taking affect in March of this year will provide businesses with a clearer understanding of what types of information are protected as consumer personal information in China. This new definition will clarify companies' obligations with respect to the use and processing of that information under other Chinese laws and regulations. A failure by businesses to recognise these new requirements can lead to onerous penalties including fines.
- LEGAL -
FALSE INFORMATION SUPPLIED BY THE EMPLOYEE AND TERMINATION OF EMPLOYMENT CONTRACT
During the recruitment process, the employer often requires the employee to provide basic information which directly relates to the employment contract such as age, degree, English level, work experience, health condition, etc., and employees shall truthfully provide the same. Failure to do so entitles the employer to terminate unilaterally the employment contract without severance pay. If the employee supplies false information or conceals the factual conditions, which cause the enterprise to recruit him/her, which is contrary to the enterprise's true intent, pursuant to the regulation of Article 26 of the Employment Contract Law, this employment contract shall be invalid. Furthermore, in accordance with Article 39, the enterprise can terminate the employment contract with the employee without severance pay.
- CRIMINAL RECORDS -
PROSECUTOR TO PUT JOB-RELATED CRIMINAL RECORD ONLINE
China’ top prosecuting body, the Supreme People's Procuratorate has vowed to improve the online database of people convicted of bribery to better combat corruption. Song Hansong, director of the job-related crime department, said prosecutors will promote the use of the blacklist system at the central level this year and launch a job-related criminal record archive. It also plans to improve the bribery database to support batch queries and online reservations for inquiries in a bid to make public inquiries more convenient, Song said. Launched in February 2012, the database makes names of those convicted of taking bribes available across the country for public inquiry. Anyone found on the list will likely be disqualified for bidding on government projects and companies may even be forbidden from operating.
- EMPLOYMENT OUTLOOK -
EMPLOYMENT MARKET BULLISH IN 2015
Greater China’s employment market is expected to be bullish in 2015 with a new survey revealing that over half of employers in mainland China, Hong Kong, and Taiwan plan to hire new staff over the next 12 months, according to recruitment firm Michael Page. Hiring intentions are strongest in Taiwan with 63% of the employers planning to increase headcount in 2015. This compares with 53% for the mainland and 51% for Hong Kong. Anthony Thompson, Regional Managing Director for Michael Page Greater China, commented: “The outlook for 2015 shows there is steady growth in the labour market across the region. With rising salaries and a talent shortage, employees will be the winners on the labour market in the coming year.”
- EMPLOYMENT SCREENING NEWS -
BACKGROUND CHECK OF CAB DRIVERS IN MUMBAI: OF 26,901 CABBIES ONLY 836 GET GREEN SIGNAL
Out of 26,901 taxi drivers who were being investigated by the Mumbai police as part of a character verification drive after the Uber cab rape in New Delhi, only 836 managed to get character certificates from the Mumbai police. The Mumbai police started this exercise to check and verify the background of all taxi drivers - public and private - after the Uber incident. However, after nearly two months, the police got details of around 26,901 taxi drivers from the RTO, out of which 20,237 had to be sent back as the addresses were incomplete. The Uber rape victim accused Uber in a lawsuit filed in US court of failing to properly investigate the alleged assailant's background. Protesters in India called for a permanent ban of Uber.
- OCCUPATIONAL FRAUD -
CORPORATE FRAUDS IN INDIA ON THE RISE
Lack of strong internal audit mechanism along with over-riding powers of top management have resulted in corporate frauds in India. The corporate frauds have risen over 45% in the last two years. According to a study conducted by ASSOCHAM and Grant Thorton, corruption, money laundering, tax evasion, window dressing, financial reporting fraud and bribery are the common corporate frauds occurring in India Inc. "Over 65% of our survey respondents agreed to witness a rising trend of willful defaults and frauds. The survey observed that the lurking risk of frauds has been dissuading global companies from investing in India," states the report.
- EMPLOYMENT OUTLOOK -
RPO INDUSTRY SET TO TAKE-OFF IN 2015
India’s Recruitment Process Outsourcing (RPO) market, which is currently valued at approximately INR 4 billion (64.3 million), is expected to grow by between 40% and 50% this year. Randstad has seen requests for RPO in India more than quadrupling, up 120% compared with last year. TeamLease Services has also recently established a formal RPO unit to cater for increased demand for RPO. ScaleneWorks People Solutions has grown its RPO business by 120% since last year. Moorthy Uppaluri, Managing Director and CEO of Randstad India said, “The top three growth drivers for the RPO boom in 2015 are the need for organisations to enhance quality of hiring, reduce cost of hiring and increase speed of hiring.”
COUNTRY BACKGROUND SCREENING ESSENTIALS
There is no one specific law governing background screening in Japan, however, various pieces of legislation do cover parts of the screening process. The practice of background screening in Japan nowadays however has been limited greatly in the past several years by the enactment of new legislation relating to discrimination, privacy and dealing with third party agencies. The five main laws to consider when designing and implementing a screening program in Japan are: Japan’s Personal Information Protection Law, Labor Standards Law 1947, Welfare in 2000, Human Resource Development in High-level IT – Ministry of Economy, Trade and Industry, and Action Guide Regarding to the Protection of Personal Information of Workers.
-DATA PROTECTION & PRIVACY-
HANDBOOK ON EUROPEAN DATA PROTECTION LAW
The handbook on European data protection law is jointly prepared by the European Union Agency for Fundamental Rights and the Council of Europe together with the Registry of the European Court of Human Rights. It is the third in a series of legal handbooks jointly prepared by the EU Agency for Fundamental Rights and the Council of Europe. The Handbook presents legal framework of the EU and the Council of Europe, including the case law on personal data protection of the European Court of Human Rights and of the Court of Justice of the EU. The aim of the handbook is to raise awareness and improve knowledge of data protection rules in EU and Council of Europe member states by serving as the main point of reference to which readers can turn. It is designed for non-specialist legal professionals, judges, national data protection authorities and others working in data protection.
Access the Handbook here
WHAT WILL BE THE IMPACT OF THE NEW EU DATA PROTECTION REGULATION ON THE UK’S FREEDOM OF INFORMATION ACT?
Undoubtedly one of the more mind-bending exemptions to apply under the Freedom of Information Act 2000 (FOIA) is the exemption for personal information (s.40). This is partly due to s. 40’s close link with the Data Protection Act 1998 (DPA). The final text of the EU Data Protection Regulation is not yet agreed and discussions are on-going within the EU. However, the new EU Data Protection regulatory framework will be presented as a Regulation and not a Directive. A Regulation has direct applicability in UK law which will almost certainly lead to the repeal of the DPA. It is likely that the FOIA will need to be amended to reflect the repeal of the DPA and refer to the new law. Additionally, it seems certain that the new Regulation will be more prescriptive than the DPA and there will be reduced scope for national particularisation.
- DATA PROTECTION & PRIVACY -
GERMAN GOVERNMENT ADOPTS DRAFT LAW REGARDING THE ENFORCEMENT OF DATA PROTECTION LAW BY CONSUMER PROTECTION ASSOCIATIONS
On February 4, 2015, the German government adopted a draft law to improve the enforcement of data protection provisions that are focused on consumer protection. The draft law enables consumer protection organizations, trade associations and certain other associations to enforce cease-and desist letters and file interim injunctions in cases where companies violate the newly defined protective data protection provisions for consumers. The draft law must be approved by the Federal Parliament before taking effect.
GERMANY WANTS TO INTRODUCE CLASS ACTIONS FOR PRIVACY VIOLATIONS
The German Government approved a draft law to strengthen the private enforcement of certain data protection law provisions that aim to protect consumers. In particular, the draft law empowers consumers and other qualified associations to send cease-and-desist letters and to initiate legal action for injunctive relief against companies violating the law’s provisions. The draft Act targets the data handling practices ofcompanies whose business models are based on the commercialization of data. The draft law plays a pioneering role and pre-empts similar types of class actions that the European Commission has proposed in its draft General Data Protection Regulation. It will now have to pass the legislative process before it can enter into force.
CHANGES TO THE POLISH DATA PROTECTION ACT MAY AFFECT YOUR COMPLIANCE STATUS
As of 1 January, amendments to the Polish Data Protection Act of 29 August 1997 entered into force, following the passing, on 7 November 2014, of the act on the facilitation of conditions regarding the conduct of business activity, which may impact the data compliance status of many companies. The law generally aims to facilitate data controllers' duties and it will amend or supplement existing provisions by providing additional options to fulfill data protection requirements. Some may find it surprising that Poland changed its data protection law now, since the new, relevant EU General Data Protection Regulation is on the way, but the amendment process has been in progress since 2012.
SCOTLAND CALLS FOR REGULAR CHECKS AFTER AGENCY WORKER LORRY DRIVER FALLS ASLEEP AT THE WHEEL
Union and opposition leaders in Edinburgh have called for regular checks to be introduced to ensure bin lorry drivers are fit to be on the road after an agency worker twice fell asleep at the wheel. The Edinburgh incident -which is understood not to have been caused by an underlying health issue - happened only weeks after six pedestrians in Glasgow were killed by a runaway bin lorry. Critics said that temporary drivers drafted in by the city council were too often left "to get on with the job" and should be subject to the same stringent vetting procedures as in-house staff. They also backed the introduction of tougher procedures to maintain performance and safety standards, including regular health checks.
JOB CREATION BACK UP TO PRE-RECESSION LEVELS
Spain created more than 400,000 jobs in 2014, a clear sign that the country is finally starting to emerge from its labour market crisis. Over the last 12 months, 434,000 jobs were created, bringing the overall unemployment rate down to 23.7%. It is the first such annual net job increase since 2007, when unemployment dropped to just below 8%. However, the collapse of the housing and construction sectors, followed by the euro-zone crisis, saw Spain’s jobless rate soar to 27% by the end of 2012. Deputy Prime Minister Soraya Sáenz de Santamaría said the new figures showed the reforms were paying off. “This change in trend is the beginning of a new era, a positive sign for those Spaniards who are still waiting for an opportunity, and a sign that clearly shows that the objective of creating a million jobs between 2014 and 2015 is realisable.”
- DIPLOMA MILLS, FAKE DEGREES, FAKE REFERENCES & FAKE RESUMES
- MASTER FORGERS MADE THOUSANDS OF FAKE IDENTITY DOCUMENTS TO ORDER
Two men who made and sold thousands of counterfeit identity documents to criminals and illegal immigrants across London have been jailed, following an investigation by the National Crime Agency. Medi Krasniqi acted as the ‘broker’ for the pair, collecting information and payment from clients who needed fake IDs. Albanian national Arsen Meci was the forger, creating thousands of fake identity documents. The pair is believed to have charged their clients between £80 and £500 for made-to-order documents, depending on what was required. Both men pleaded guilty to conspiring to produce false identity documents, possession of false ID and money laundering charges. Meci was jailed for six-and-a-half years while Krasniqi got five-and-a-half years. Meci will also face deportation. Read more
- EMPLOYMENT SCREENING NEWS -
DURHAM POLICE UNVEIL NEW GUIDELINES FOR CRIMINAL BACKGROUND CHECKS
Durham Region Police have announced some welcome changes to the guidelines the force follows on criminal background checks. Starting Feb. 1, police will, in most cases, no longer release non-conviction records, meaning people applying for jobs or volunteer positions will no longer be adversely affected by any past involvement with police. The changes came about after much-publicized accounts across Ontario of people who lost out on jobs or couldn't become volunteers due to disclosures in police background checks about past brushes with the law, even if there were no convictions or even charges. The new guidelines aim to strike a balance between providing information about individuals applying to work with vulnerable people and the rights of those applicants to privacy and the presumption of innocence, members of the Durham police services board were told recently.
BACKGROUND CHECKING IN CANADA
Conducting background checks into the educational, employment, criminal or credit history of candidates for employment can form part of a company's recruitment processes. Here is a brief overview of the Canadian legislation to be considered when implementing policies and procedures for background checking in Canada. What legislation must be considered before conducting background checks? (a) Privacy Legislation (b) Human Rights Legislation. What types of background checks can employers conduct? (a) Reference and Educational/Professional Credentials Checks (b) Criminal Record Checks (c) Credit History Checks.
- ALCOHOL & DRUG SCREENING -
MEDICAL MARIHUANA IN THE WORKPLACE
In the last few years, statistics show that an increasing number of licences to possess medical marihuana have been granted, and with the recent changes to the federal legislation, this number is very likely to keep growing. One of the many issues to be considered in the wake of these changes is the impact on the employment sphere: How should employers deal with employees who use prescribed marihuana in the workplace? What measures should be put in place? Should parameters be set in order to supervise the use of medical marihuana in the workplace? Beginning in 2001 in Canada, medical marihuana was controlled through the Marihuana Medical Access Regulations (MMAR), under the Controlled Drugs and Substances Act, as established by Health Canada. Since March 2014, under the MMPR, licences are no longer granted by Health Canada. Practitioners, who previously had the role of declaring medical conditions, are now enabled to prescribe medical marihuana.
20% OF POPULATION HAS A CRIMINAL CONVICTION
About 20% of the Cayman Islands population, (10,067 persons), has a criminal conviction according to a Royal Cayman Islands Police Service (RCIPS) response to a Freedom of Information (FOI) request. The FOI request, which was made by local defence attorney Peter Polack, was issued on 16 January 2015, some five months after the initial request was made making it severely late according to the FOI law. The FOI response also did not address numerous information requests made by Polack, such as; information providing statistics on numbers and types of specific offences. The RCIPS stated that the office was currently understaffed by seven and the Criminal Records Office would have to divert resources to search 10,067 records.
2013: Highest Rate of Employee Theft in 6 Years
"2013 was a gangbuster year for embezzlement in the United States, exceeding even 2012's previous record pace," says Christopher T. Marquet, author of The 2013 Marquet Report on Embezzlement, released in December 2014. Vermont topped the list of highest embezzlement risk states in the nation for the third time in six years."
Vermont was promptly followed as a high-risk state for embezzlement by the District of Columbia, West Virginia, Montana, South Dakota, Virginia, Idaho, Oklahoma, Texas and Missouri. Credit Unions especially continue at record levels of embezzlement, the report notes.
The number of U.S. embezzlement cases increased five percent over 2012 - 554 major cases (those with more than $100,000 in reported losses) were active in the U.S. in 2013.
When, If Ever, Does Employment Discrimination Against Ex-Offenders Violate Title VII?
Title VII of the 1964 Civil Rights Act prohibits public and private employers from discriminating against job seekers on the base of race, ethnicity, religion or gender, unless the employer can demonstrate a business necessity. These discriminations are widely condemned as immoral and irrational. By contrast, criminal record-based-employment-discrimination (CBED) is not generally considered immoral or irrational and is not mentioned in Title VII. (Likewise, in Europe, where an individual's criminal history is regarded as entitled to privacy protection, employment discrimination against ex-offenders is not unlawful.)
FTC Shuts Down Diploma Mill Operators
The principal owners doing business as "Jefferson High School Online" and "Enterprise High School Online," are permanently banned from marketing and selling academic degrees under settlements with the Federal Trade Commission. Defendants led consumers to believe that those who passed their online multiple-choice exam and paid between $200 and $300 could obtain legitimate high school diplomas. U.S. district court judge signed a temporary restraining order to halt the deceptive practices and freeze the assets of the defendants. The orders also impose a judgment of more than $11.1 million against the defendants and the corporate entity.
The FTC is also seeking separate default judgments with similar prohibitions against two additional businesses operated by the defendants: Diversified Educational Resources (DER) LLC and Motivational Management & Development Services (MMDS), Ltd .
Advancing a Fair Chance Hiring Agenda
A January 2015 report from the National Employment Law Project (NELP) indicates that "almost one in three adults in the United States has a criminal record that will show up on a routine criminal background check. This creates a serious barrier to employment for millions of workers, especially in communities of color hardest hit by decades of over-criminalization."
Reflecting the growing political consensus behind "smart on crime" reforms, elected officials from across the ideological spectrum have embraced "fair chance" hiring policies. More than 100 jurisdictions, including 13 states, the District of Columbia, and 96 cities and counties, have adopted "ban the box" and other fair chance hiring reforms.
NELP makes the case for federal reforms to promote successful reentry, including encouraging hiring practices, such as "Ban the Box," which give applicants a fair chance and allows employers the opportunity to judge individual job candidates on their merits as they reenter the workforce.
Class Action Trends in Virginia: Employment Background Reports
Forty percent of the consumer class actions filed in Virginia in 2014 alleging violations of the Fair Credit Reporting Act ("FCRA") relate to background reports for employment purposes. With one exception, all of the cases are against consumer reporting agencies. The exception is a lawsuit against an employer. Every one of the employment-related cases seeks certification of one or more nationwide classes that could include thousands of consumers.
These allegations accuse consumer reporting agencies of either failing to have, or not following, the correct procedures under the FCRA in the following three areas:
1. what to disclose to consumers when a consumer report is furnished to an employer;
2. scrubbing outdated information from the consumer reports; and
3. providing the entire consumer file in response to a consumer's request.
FCRA Class Actions focus on technical violations and seek to recover statutory and punitive damages for the class members.
All but one of these cases filed in 2014 were filed by the same law firm.
Another FCRA Class Action Lawsuit Crafted Against Michaels
A second class action lawsuit alleging improper background checks on job applicants was filed in federal court in Texas against the retail craft supply chain Michaels Stores Inc. The plaintiff argues that Michaels violated the federal Fair Credit Reporting Act (FCRA) by burying notice that the company would obtain a credit report in the job application. "Defendant's FCRA disclosure and authorization are embedded within an online employment application which appears as one long continuous Web page that applicants fill out, and which contains a liability release, among reams of other extraneous information," the Michaels class action lawsuit alleges.
The Texas Michaels Background Check Class Action Lawsuit is Castro v. Michaels Stores Inc., Case No. 3:15-cv-00276, in the U.S. District Court for the Northern District of Texas.
FCRA Class Action Lawsuit Filed Against Pizza Hut
In a complaint filed January 15, 2015 in the Southern District of New York the Plaintiff - Alberto Rivera, a job applicant at a Bronx, NY location - alleges Pizza Hut violated the federal Fair Credit Reporting Act (FCRA) requirement that a "clear and conspicuous disclosure" about a background check for employment purposes be made in writing" in a document that consists solely of the disclosure." The class action lawsuit is Alberto Rivera v. Pizza Hut of America, Case No. 15CV00308, U.S. District Court for the Southern District of New York.
Dot Every "i" in Iowa to Comply with Drug Testing Law
Iowa Code § 730.5, which relates to private sector drug and alcohol testing, is a strict liability statute and many consider it complicated and difficult to administer.
Even if an employee tests positive for illegal drugs the employer is required, among other things, to provide privacy for the collection of samples, a reasonable sample collection process and very clear notice and direction regarding testing. Urine samples have to be split into two components with the second portion of the sample sufficient to "permit a second independent confirmatory test." The statute does allow for the collection of oral fluids, but generally the collection of blood, which would be considered to be an invasion of the body, is prohibited.
In the event that there is a disability present, which may result in a skewing of the sample or inability to give a sample employers must attempt to offer an alternative means of testing or have other accommodation processes in place.
Medical Marijuana Update
Dr. Carolyn Clancy, the VA's interim under secretary for health, told the House Committee on Veterans' Affairs "there are active discussions going on now" about how to deal with the growing number of vets seeking to use medical marijuana for their ailments. She said "there's an incredible opportunity for us to learn from some of those experiences, but I think that we have to be careful given the variation in legal issues."
California Assemblyman Ken Cooley filed Assembly Bill 266 with the backing of the California League of Cities and the California Police Chiefs Association. The bill seeks to impose state-wide regulation on the Golden State's medical marijuana scene.
Florida Rep. Greg Steube (R-Sarasota) has filed House Bill 683, which would only allow people with eight specified medical conditions to use it and which bars the use of smoked marijuana. Sen. Jeff Brandes (R-St. Petersburg) earlier filed another, less restrictive medical marijuana bill.
In Virginia, the Senate approved Senate Bill 1235, which would allow for the use of high-CBD cannabis oil and the House of Delegates approved House Bill 1445. The bills would allow for the use of cannabis oil for children suffering medical conditions that bring on life-threatening seizures.
In Washington a statewide medical marijuana regulation bill was introduced.
E-Verify Begins Checking Nebraska Driver's License and ID Cards
The United States Citizenship and Immigration Services (USCIS) announced that as of February 1, 2015, the E-Verify system now checks driver's licenses and ID cards from the state of Nebraska when presented by a new hire for the Form I-9. Nebraska is the fifth state to join the Records and Information from DMVs for E-Verify (RIDE)Program, which was launched in June of 2011 to address issues of identity theft and document fraud in the hiring process. Other participating states include Mississippi, Florida, Idaho, and Iowa.
What Happens When An Employee Admits I-9 Documents Were Fraudulent
On January 8, 2015, the U.S. Department of Justice (DOJ) Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) issued a technical assistance letter (TAL) in response to an employer's request for guidance. The employer sought guidance on how to address the instance where an employee admitted after the fact that the documents presented during the Form I-9 process were not genuine and whether the employer would face any liability for discrimination if it chose to terminate the employee.
Not surprisingly, OSC refused to issue an advisory opinion. But it did provide general guidelines regarding compliance with the anti-discrimination provision of the Immigration & Nationality Act (INA), 8 U.S.C. § 1324b . The TAL stated, in instances where an employer has properly completed these steps, and subsequently an employee comes forward with authentic work and identify documents once he/she has legalized his/her immigration status, theUSCIS Handbook for Employers advises the employer to complete a new Form I-9 with the original hire date and new documentation, and attach it to the old Form I-9 with an explanation. The employer is not required to terminate the employee.
Yet, if the employer rejected valid work-authorization or terminated the employee, such actions could result in a violation of the anti-discrimination provision of the INA on the grounds of citizenship and/or national origin discrimination and document abuse (employers cannot reject valid Form I-9 documentation). OSC opined that the employer would then be tasked with providing a legitimate non-discriminatory reason for termination.
Data Breach Notification Bills Introduced in House and Senate
The Data Accountability and Trust Act (DATA Act), (H.R. 580), has been introduced in the House of Representatives. The bill would provide a nationwide data security standard, backed by FTC enforcement and civil penalties, as well as provisions requiring notification to affected individuals in the event of a data breach. Meanwhile, a similar bill, the Data Security and Breach Notification Act (S. 177) was introduced in the Senate.
According to the release, Commercial entities that own or process personal information would be required to implement effective information security procedures and policies to safeguard that information. Following a breach, entities would have to notify the affected individuals, in addition to the FTC. The FTC and state attorney generals would enforce the provisions of the bill, which would allow for civil penalties of up to $5 million for violations.
OTA Releases Guidelines on Privacy Assessment, Best Practices
More than 90% of the 500 data breaches that occurred from January to June 2014 could have easily been prevented, per a report released Wednesday from The Online Trust Alliance (OTA).
The OTA's 2015 Data Protection Best Practices and Risk Assessment Guides reveals 40% of the more than a thousand breaches analyzed resulted from external intrusions; 29%, by employees, accidentally or maliciously, due to a lack of internal controls; 18% attributed to lost or stolen devices or documents; and 11% to social engineering, forged email and fraud. The data breaches involved the loss of personally identifiable information (PII), as reported by the Open Security Foundation (OSF).
BRAZIL ISSUES DATA PROTECTION BILL
The Brazilian government issued a Draft Bill for the Protection of Personal Data (Anteprojeto de Lei para a Proteção de Dados Pessoais) on 28 January 2015.
Information about Brazil's Bill http://participacao.mj.gov.br/dadospessoais/ (in Portuguese)
The text of the Bill is at http://participacao.mj.gov.br/dadospessoais/texto-em-debate/anteprojeto-de-lei-para-a-protecao-de-dados-pessoais/ (in Portuguese)