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Verifile International Newsletter Issue #15

04 Feb 2016

Welcome to our February edition of the International Newsletter 2016 which we hope you find helpful in keeping up to date.

In this issue of the International Newsletter:

WORLDWIDE NEWS  
ASIA PACIFIC  
AUSTRALIA

- BACKGROUND CHECKS/PRE-EMPLOYMENT SCREENING IN HEALTH AND AGED CARE - WHAT IS INVOLVED?

- NSW GETS NEW CROSS BORDER DATA SHARING RULES

- NEW DRUG AND ALCOHOL TESTING LAWS FROM 16 OCTOBER

INDIA

- NEXT QUARTER WILL SEE MORE HIRING AND FIRING: SURVEY

- SMALL-TOWN INDIANS MORE EMPLOYABLE THAN THOSE FROM THE METROS

INDONESIA

- UPDATE: GUIDE TO BACKGROUND CHECKS IN INDONESIA

EUROPE

- EU COUNCIL REACHES COMMON POSITION ON DRAFT DATA PROTECTION DIRECTIVE

- EMPLOYEE PRIVACY AND DATA PROTECTION IN THE BENELUX

- EU DATA PROTECTION: ECJ EXTENDS THE LONG ARM OF THE LAW

- EU AND APEC OFFICIALS AGREE TO STREAMLINE BCR/CBPR APPLICATION PROCESS

FRANCE

- FRENCH DATA PROTECTION AUTHORITY ISSUES GUIDANCE AND FAQS ON SAFE HARBOR

GERMANY

- GERMAN DPA ISSUES POSITION PAPER ON DATA TRANSFER MECHANISMS IN LIGHT OF CJEU SAFE HARBOR DECISION

- COMMISSIONERS 'UNLIKELY TO GRANT GRACE PERIOD' IN SAFE HARBOR ENFORCEMENT

UNITED KINGDOM

- WHY SO MANY PEOPLE LIE ABOUT THEIR TRAINING HISTORY

- ILLEGAL WORKING CHECKS - ARE YOU PROTECTED?

- LANDLORDS WARNED OVER POTENTIAL IMPACT OF NEW RIGHT TO RENT SCHEME

NORTH AMERICA  
CANADA

- ONTARIO PASSES POLICE RECORD CHECKS LEGISLATION

- MEDICINAL MARIJUANA RULING AFFECTS EMPLOYERS

- SUBSTANCE USE AND THE WORKPLACE: MORE CONSIDERATIONS FOR EMPLOYER ACCOMMODATION STRATEGIES

- MEDICINAL MARIHUANA IN THE WORKPLACE

UNITED STATES

- NATIONAL BACKGROUND CHECKS TO BE REQUIRED FOR THOSE WHO WORK WITH SENIOR CITIZENS

- PHONY JOB APPLICANTS TARGETING EMPLOYERS BASED ON TECHNICAL VIOLATIONS OF FEDERAL BACKGROUND CHECK LAW

- BAD BACKGROUND CHECK LEADS TO CLASS ACTIONS, INCLUDING AGAINST FREEMAN WEBB

- CALIFORNIA LAW AND BACKGROUND SCREENING

- NASHVILLE JOINS OTHER CITIES IN BAN THE BOX MOVEMENT

- PORTLAND, OREGON BANS THE BOX

- STERLING BACKGROUND CHECK CLASS ACTION SETTLEMENT GETS FINAL OK

- GILL-TURNER BILL TO END EMPLOYMENT DISCRIMINATION BASED ON CREDIT HISTORY CLEARS SENATE

- EMPLOYEE TERMINATION UPHELD DUE TO FAILURE TO COMPLY WITH EMPLOYER'S PRESCRIPTION MEDICATION POLICY

- WASHINGTON COURT DISMISSES MEDICAL MARIJUANA CLAIMS ASSERTED BY EMPLOYEE

- MAINE IS LATEST STATE TO RESTRICT EMPLOYER ACCESS TO PERSONAL SOCIAL MEDIA ACCOUNTS

- MODEL SOCIAL MEDIA PRIVACY LEGISLATION TO BE PROPOSED IN 2016

- INCREASED PROHIBITIONS ON USING "E-VERIFY" (AB 622)

- WISCONSIN BECOME SEVENTH STATE TO JOINB E-VERIFY RIDE PROGRAM

 

World wide news

 

Asia Pacific

Australia

EMPLOYMENT SCREENING NEWS

BACKGROUND CHECKS/PRE-EMPLOYMENT SCREENING IN HEALTH AND AGED CARE - WHAT IS INVOLVED?

A critical lesson from the Quakers Hill Nursing Home disaster is to conduct adequate pre-employment screening and check references on new employees. These principles may also be applied to conducting adequate background checks and checking references on independent contractors such as agency staff, volunteers and potential residents. Importantly the screening process must comply with Australian Privacy Principles, anti-discrimination legislation and other laws. By revealing information in relation to attributes protected under anti-discrimination laws, the screening of job applicants can expose an employer to a claim alleging breach of those laws. If employers regard the screening process information as essential to their recruitment decision-making, they should ensure that such information has a clear connection to the inherent requirements of the position.

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DATA PROTECTION & PRIVACY

NSW GETS NEW CROSS BORDER DATA SHARING RULES

NSW will finally get new privacy laws that govern how and when state-held information can be shared outside its boundaries, thanks to an amendment to the Privacy Act passed by parliament. The legislation is aimed at addressing deficiencies in the Privacy and Personal Information Protection Act 1998 which meant personal information on NSW citizens was no longer protected once it moved outside state borders. The state’s privacy legislation, which controls the use and disclosure of personal data held by public sector organisations, came into effect 17 years ago. Guidelines for data sharing interstate and with Commonwealth were expected to follow soon after, but never materialised. The new law is designed to make it clear that NSW entities are still responsible for privacy even outside state borders when they are sharing data with other governments or third-party vendors like cloud hosting providers. The bill passed unopposed.

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ALCOHOL & DRUG SCREENING

NEW DRUG AND ALCOHOL TESTING LAWS FROM 16 OCTOBER

New amendments to the Building Code 2013 will require contractors on publicly funded construction sites to have a policy in place for mandatory drug and alcohol testing by October 16. Announcing the changes, former Employment Minister Eric Abetz said: "It is simply an unacceptable risk to the health and safety of employees and the public to have workers affected by drugs or alcohol on construction sites." According to Victorian Police, the trucking industry is one in which drug use has become a particularly significant problem. Claire Brattey, associate director at People + Culture Strategies said that if employers choose to begin using drug testing, they need to balance their legal rights and obligations with achieving an outcome on drugs and alcohol that: maximises organisational productivity; is appropriate for their industry; and aligns employees with the organisation's culture and values.

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India

EMPLOYMENT OUTLOOK

NEXT QUARTER WILL SEE MORE HIRING AND FIRING: SURVEY

The Indian job market is preparing for a shake-up by the next quarter. According to a survey by recruitment firm, Antal International, 38% of Indian companies are planning to fire management-level employees in the next quarter. Currently, 29% of companies are laying off their managers, which means layoffs will increase in the next quarter. However, the good news is that 88% of Indian companies also plan to hire managers during the same time. Currently, 62% of Indian companies are hiring. This implies a significant spurt in hiring, starting January, 2016. Indian companies will hire as well as fire more than their counterparts at the APAC and global levels. At the APAC level, 63% of companies are currently hiring and the number is expected to remain the same in the next quarter as well. Globally, the current firing level is at 21 %, which will also reduce to 19% in the next quarter.

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SMALL-TOWN INDIANS MORE EMPLOYABLE THAN THOSE FROM THE METROS

According to the India Skills Report 2016, over 50% of the workforce from Tier II & III cities are employable vis-à-vis 30% in the Tier I cities. However, there has been an overall increase in the employability score, which has risen to 38.12% from 37.22% in 2015. The figure for 2014 was only 33.95%. In terms of age group, the employability factor (those who scored more than 60%) was highest in the 18–21 group with 37%, followed by the 22–25 group with 31.59% and the 26–29 group, with employability of 21.88%. The study forecasts an overall increase of 14.5% in the hiring intent in 2016. The sectors which will see maximum hiring are retail, e-commerce, BFSI, pharma, telecom, and manufacturing with an increase of over 20% in the hiring numbers followed by BPO/KPO/ITES and core sectors, with an increase of over 10%.

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Indonesia

UPDATE: GUIDE TO BACKGROUND CHECKS IN INDONESIA

Employers in Indonesia regularly carry out background checks on applicants. Background checks are not expressly regulated by Indonesian employment laws, and certain background checks are subject to the consent of the applicant in practice. The most common background checks involve those on an applicant's educational credentials, employment history and professional licenses, which, in practice, are usually provided voluntarily by the applicant. Any checks undertaken must be appropriate and proportionate to the position being applied for and must not discriminate or discourage people from applying. There are no specific privacy or data protection requirements under Indonesian employment laws for employers who want to obtain criminal records, school records or employment or financial information of employees or potential employees. However, Indonesia has enacted various laws relating to data privacy in a number of areas.

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Europe

DATA PROTECTION & PRIVACY

EU COUNCIL REACHES COMMON POSITION ON DRAFT DATA PROTECTION DIRECTIVE

The EU Council has agreed its negotiating position on the draft Data Protection Directive for the law enforcement area. This in an important step as the Trilogue parties working on the EU Draft DP Regulation had agreed that the two instruments needed to be adopted as a package. It also signals that many of the key issue may have been resolved as some of the concepts are the same in the Regulation and the Directive. This agreement enables the Luxembourg Presidency to also start discussions with the European Parliament on this part of the data protection package. The Trilogue parties aim to finish negotiations on the two instruments by the end of this year. According to the EU Council, EU Member States may provide nationally higher safeguards than the ones set out in the Directive.

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EMPLOYEE PRIVACY AND DATA PROTECTION IN THE BENELUX

Many activities routinely performed by employers in the employment context entail the processing of personal data of employees. This is for example the case when processing payroll or employee records, but also when monitoring workers’ email or Internet access. Generally, such processing will fall within the scope of the data protection legislation, which means that employers have to comply with strict rules and regulations. This brochure provides an overview of the most important data protection rules that apply in Belgium, Luxembourg and the Netherlands with a focus on HR issues and employee privacy in relation to transactions. Although the legislation in all three countries is an implementation of EU Directive 95/46, there are differences in the concrete translation of the directive and the application by the data protection authority in each country.

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EU DATA PROTECTION: ECJ EXTENDS THE LONG ARM OF THE LAW

National EU member state courts, as well as the European Court of Justice (ECJ), have struggled for several years to define the scope of application of EU data protection law in individual member states. In a decision that provides important guidelines on the competence of, and co-operation between, national data protection authorities (DPAs), the ECJ has clarified how data protection law applies in cross-border situations within the EU. In this significant ruling, the ECJ has confirmed its view that even minimal activities in a member state can trigger the application of that member state’s data protection law. It clarified that this wide interpretation of the Directive is not only applicable in situations where the data controller is based outside the EU. However, the ECJ still failed to set out clearly when data processing takes place “in the context of the activities” of an establishment

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EU AND APEC OFFICIALS AGREE TO STREAMLINE BCR/CBPR APPLICATION PROCESS

In 2014, Hewlett-Packard (HP) became the first company to win approval for both binding corporate rules (BCRs) and cross-border privacy rules (CBPRs). Both processes take a significant number of man-hours to achieve. But to demonstrate compliance, many of the administrative hurdles are the same. That’s why an EU/APEC working group has approved a plan for increased interoperability by making it easier for companies to comply with both BCRs and CBPRs at once. The EU’s Article 29 Working Party has agreed to the APEC Data Privacy Subgroup’s proposal to develop a common questionnaire based on the forms that now must be completed to apply for BCRs and CBPRs separately. The idea is that organizations will be able to submit the single questionnaire to both EU DPAs and to APEC Accountability Agents to reach compliance with both systems at once.

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France

FRENCH DATA PROTECTION AUTHORITY ISSUES GUIDANCE AND FAQS ON SAFE HARBOR

The French Data Protection Authority (CNIL) has published guidance, including a set of frequently asked questions, to assist companies that are transferring personal data to the U.S. pursuant to the Safe Harbor framework. The CNIL stated that the decision of the Court of Justice of the European Union (CJEU) invalidated the European Commission’s decision on the adequacy of the protection provided by Safe Harbor. Consequently, companies can no longer rely on Safe Harbor to transfer personal data to the U.S. The CNIL then met with other European data protection authorities within the Article 29 Working Party, calling upon the EU institutions and Member States to adopt a new legal framework allowing the transfer of personal data from the EU to the U.S. in accordance with the requirements set out by the CJEU by January 31, 2016

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Germany 2

DATA PROTECTION & PRIVACY

GERMAN DPA ISSUES POSITION PAPER ON DATA TRANSFER MECHANISMS IN LIGHT OF CJEU SAFE HARBOR DECISION

On October 14, 2015, the data protection authority (DPA) in the German state of Schleswig-Holstein (UnabhängigesLandeszentrumfürDatenschutz) issued a position paper on the Safe Harbor Decision of the Court of Justice of the European Union (the CJEU). In the Position Paper, the DPA disagrees with the European Commission's opinion that alternative data transfer mechanisms may be used in place of Safe Harbor. According to the Position Paper, mechanisms such as consent and EU standard contractual clauses that are currently being discussed should be evaluated in a new way. This evaluation must focus on the principles established by the CJEU, in particular the comparable legal level of protection. The Position Paper indicates that a long-term solution would require a significant change in U.S. law. It is unknown whether other German DPAs will concur with the Position Paper.

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COMMISSIONERS 'UNLIKELY TO GRANT GRACE PERIOD' IN SAFE HARBOR ENFORCEMENT

The German Federal and State Data Protection Commissioners (the Commissioners) released a statement clarifying their position on the impact of the Court of Justice of the European Union's (CJEU) decision in Maximilian Schrems v. Data Protection Commissioner C-362/14 (the Opinion). The Commissioners stated that they will not grant any new authorisations for the transfer of personal data abroad under Binding Corporate Rules (BCRs) and/or model contract clauses. "In addition, the Commissioners seem willing to take action against data transfers based on Safe Harbor immediately and will likely not grant a 'grace period' until February 2016 as mentioned by the Article 29 Working Party (WP29)," said Ulrich Baumgartner, Partner at Osborne Clarke. "While we would not expect that all Commissioners take a strict approach immediately, companies in Germany should certainly prepare for it."

Read more

United Kingdom 2

EMPLOYMENT SCREENING NEWS

WHY SO MANY PEOPLE LIE ABOUT THEIR TRAINING HISTORY

It's relatively common for workers to lie about their training history when they are applying for a job, according to a new survey. In fact, 54% of respondents admitted that they had been dishonest to a potential employer when they were applying for a job. “Many of us have no doubt experienced job interviews where we panic and think we’re not good enough for a position, and then resort to exaggerating the truth in order to make ourselves look and sound better,” said Shona Fletcher, CEO of Enterprise Study. “Having said that, outright lies are a different thing.” The most common reason for lying was that the respondents were worried about the lack of knowledge needed, so they “exaggerated” their previous experience.

IMMIGRATION ISSUES

ILLEGAL WORKING CHECKS - ARE YOU PROTECTED?

The Home Office is focusing on the prevention of illegal working. Are your practices for checking right to work documents up to date and being adhered to? As an employer, you may be liable to a civil penalty of up to £20,000 for each illegal worker if you fail to carry out the necessary checks on individuals before they commence work and are found to be employing someone who doesn't have the right to work in the UK. Also, knowingly employing an illegal worker, regardless of whether you have conducted documents checks, is a criminal offence and could result in up to 2 years imprisonment and/or an unlimited fine. This particularly impacts the healthcare sector due to the number of individuals employed. As an employer, failure to undertake the correct checks can result in civil and criminal prosecutions.

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TENANT SCREENING

LANDLORDS WARNED OVER POTENTIAL IMPACT OF NEW RIGHT TO RENT SCHEME

The Right to Rent scheme is being extended across the country from February following a pilot in the West Midlands. Under the scheme, landlords and letting agents face hefty fines if they rent a property to illegal immigrants without first making proper checks. Tenant Screening, a firm providing a vetting service to landlords and letting agents, is urging anyone renting property to ensure they do not fall foul of the new scheme, which aims to clamp down on illegal immigrants living in private rental property. During the first six months of the pilot, 109 people in Britain illegally were identified as a result of the compulsory checks on new tenants. “The onus is on the landlord to carry out certain checks on prospective tenants to see if they have a right to rent in this country,” said Kelvin McCarthy, screening manager at Tenant Screening.

North America

 

Canada 2

EMPLOYMENT SCREENING NEWS

ONTARIO PASSES POLICE RECORD CHECKS LEGISLATION

The Ontario government unanimously enacted the Police Record Checks Reform Act, 2015. The Act limits the types of information that can be released in each of three different types of police record checks. Notably, it prohibits disclosure of mental health records and records from police "carding" checks and other non-conviction records, except in limited circumstances. It also standardizes the disclosure procedure. The Act is not yet in force, but will come into force on a date to be named by proclamation of the Lieutenant Governor. Given the implementation of different types of checks that carry different disclosure permissions, there may need to be changes to the system for requesting background checks. This means that employers should be prepared for new logistical and organizational steps in order to adapt.

Read more

ALCOHOL & DRUG SCREENING

MEDICINAL MARIJUANA RULING AFFECTS EMPLOYERS

A landmark ruling involving medicinal marijuana makes it even more difficult for employers to enforce drug-related policies and to accommodate employees to ensure compliance with human rights legislation, says employment lawyer Gabriel Granatstein. The Supreme Court of Canada’s ruling allows Health Canada’s medical marijuana program to include edible or topical cannabis products, so employees who are medically authorized to use marijuana can ingest such products as cannabis-based teas or baked goods. While Canadians are still not legally entitled to consume marijuana in the workplace, Granatstein said, the ruling confirms that the prohibition cannot be applied without nuance. An employer can take disciplinary action if marijuana use negatively affects an employee’s conduct, but this is harder to gauge if the employee can ingest doses of marijuana similar to traditional prescription pharmaceuticals.

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SUBSTANCE USE AND THE WORKPLACE: MORE CONSIDERATIONS FOR EMPLOYER ACCOMMODATION STRATEGIES

The protections afforded by human rights legislation to employees with substance dependency issues creates a unique challenge for employers that must balance employee rights with workplace safety issues, and both courts and administrative bodies continue to wrestle with new issues in this area. The Alberta Court of Appeal released its decision in Stewart v. Elk Valley Coal Corporation. Stewart has widely been considered good news for employers, particularly those who rely on policies that require employee disclosure of drug use and dependency problems. In Stewart, the Court upheld a finding that an employer had not discriminated against an employee who had a cocaine dependency. A decision like this emphasizes the importance of ensuring that substance use policies provide clear and appropriate steps to accommodate those with various types of substance use issues.

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MEDICINAL MARIHUANA IN THE WORKPLACE

Over the years, workplaces all over Canada have seen many different issues, in particular regarding smoking and narcotic prescription drugs. The most recent issue workplaces are struggling with is medicinal marihuana. Marihuana is scarcely viewed as a medicine, which is the biggest issue. It’s the employer’s responsibility to accommodate both the user and the rest of the employees in compliance with the Human Rights Code. The Code states that disabled employees must be accommodated in the workplace. It may seem troublesome, but in the end, if you were to put yourself in the shoes of the employee using the medicinal marihuana, it means a lot; it’s also the law.

Read more

United States

To access articles for the U.S. please click here and you will be directed to the archive for The Background Buzz.

National Background Checks to be Required for those who Work with Senior Citizens

Gov. Steve Beshear signed an order requiring national criminal background checks for any new hires. “We've got to make sure that the folks who work there, and take care of those seniors, are not abusers,” said Beshear. The state has been conducting a voluntary pilot program. Beshear's order makes a check of the FBI criminal database mandatory statewide. Past efforts to require the national background checks failed in the General Assembly. Beshear, who is about to leave office, decided to bypass lawmakers. “You have some in the industry who have felt like it was an undue expense and an undue burden. But I think we owe it to our families,” said Beshear.

Read more

Phony Job Applicants Targeting Employers Based on Technical Violations of Federal Background Check Law

Claims brought against employers under the FCRA arising out of one aspect or another of employers' background investigation procedures have been the litigation de jure recently. Many of these lawsuits have resulted in multi-million dollar settlements. There is a rather pernicious new development in this area. Opportunistic faux job applicants - who have no intention of taking employment with the targeted employers - are completing and submitting employment applications solely to position themselves as the named plaintiff in class action litigation and secure a windfall settlement or litigation recovery. The key take away is that there is a new breed of individuals who are trolling the internet in search of employment applications that arguably fail to comply with the FCRA's notice and disclosure requirements. Prudence should compel you to re-examine your disclosure forms and ensure fastidious compliance with the FCRA.

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Bad Background Check Leads to Class Actions, Including Against Freeman Webb

A man who says he was wrongfully fired over false information in a background check has filed a pair of class-action lawsuits in federal court, including one against the prominent real estate firm Freeman Webb. Tyrone Jude was hired as a maintenance man at a Lebanon apartment complex. Freeman Webb bought the complex and fired Jude after the company obtained a background check that incorrectly named him as a sex offender. Jude’s case centers around alleged violations of the FCRA, which requires companies to provide notice to employees or job applicants that they are conducting a background check in a separate document only meant for that disclosure. “Our goal when we bring these types of cases is to engage with the defendant and get them to fix their practices,” said Steven Woodrow of Woodrow and Peluso.

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California Law and Background Screening

The California Supreme Court has agreed to consider whether the Investigative Consumer Reporting Agencies Act (ICRAA) is unconstitutionally vague when applied to employee background checks because of its overlap with another California law, the Consumer Credit Reporting Agencies Act (CCRAA). The case, Connor v. First Student, involves bus drivers and investigative consumer reports under the ICRAA (background checks), with the bus drivers alleging that First Student did not obtain their prior written consent as required under the ICRAA, but not the CCRAA. Plaintiffs are seeking $10,000 statutory penalties per violation. At issue is the constitutionality of the ICRAA, and thanks to Connor there is a split in the courts on this point.

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Nashville Joins Other Cities in Ban the Box Movement

Metro’s Civil Service Commission voted unanimously in favor of a movement called Ban the Box. Nashville will join about 100 cities and 16 states that have removed questions about criminal convictions from job applications. It is called “Ban the Box” because it will put an end to the small check box on job forms that asks whether an applicant has been convicted of a crime. Organizers said they are in favor of background checks and they believe an employee should have to disclose their criminal past, but feel it should happen at a later phase in the interview process. “We have never been opposed to disclosure, but when that is the first thing that you do on an application, there is bias and there is prejudice,” said Jackie Sims with Democracy Nashville.

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Portland, Oregon Bans the Box

Portland’s City Council unanimously passed new rules that will significantly affect an employer’s ability to obtain and use criminal history information in the hiring process. With these new rules, Portland joins the growing number of other cities, counties and states across the country, including Oregon, that have enacted similar “ban-the-box” legislation in recent years.Employers throughout the United States, and particularly multi-state employers, should continue to monitor developments in this and related areas of the law, including laws restricting the use of credit history informationand the fair credit reporting laws,and to assess the impact of those laws on their pre-employment screening process. Portland employers should assess whether they are covered by the law, and if so, whether they need to revise their employment application, or otherwise modify their pre-employment screening procedures.

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Sterling Background Check Class Action Settlement Gets Final OK

U.S. District Judge Lorna G. Schofield agreed to the terms of the Sterling class action settlement, which ends allegations that the background check company violated the FCRA by providing outdated information to employers, which resulted in a loss of employment. Lead plaintiff Scott Ernst, a former Dish Network employee, claims that his employer never informed him or other workers about the background report information, which prevented anyone from correcting potential errors. The Sterling background check class action lawsuit also alleged that Sterling denied Dish employees copies of their background checks even when they requested one. The background check class action lawsuit settlement does not dismiss Dish Network who still faces claims of violating the FCRA by not giving employees copies of the reports before taking action against them.

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Gill-Turner Bill to End Employment Discrimination Based on Credit History Clears Senate

A bill sponsored by Senator Nia H. Gill and Senator Shirley K. Turner that would end employment discrimination based on an individual’s credit history or financial status was approved by the full Senate. The bill (a substitute for S-524 and S-1130) would prohibit an employer from making any inquiries into the credit history or financial status of a current employee or applicant for employment, unless a good credit history or financial status is an established bona fide occupational requirement for a particular position, as laid out in the bill. Any employer found in violation of the provisions of this bill could face civil penalties of up to $2,000 for the first violation, and $5,000 for each subsequent violation. The Senate approved the bill by a vote of 22-16. It next heads to the Assembly for consideration.

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Employee Termination Upheld Due to Failure to Comply with Employer’s Prescription Medication Policy

A federal court in Utah upheld the termination of an employee who did not disclose his use of prescription medication in accordance with his employer’s policy. This case highlights the importance of having a written policy requiring “safety-sensitive” employees to report the use of prescription medications that may impair the ability to perform their job duties safely – before reporting to work while using such medications and before being selected for drug testing. Such reporting triggers an employer’s obligation to engage in the “interactive dialogue” required by the ADA to determine potential reasonable accommodation. In this case, it was undisputed that the employee was aware of the policy and that he did not comply with it. Employers must be careful not to apply such policies to non-safety-sensitive employees because there is no business justification to do so.

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Washington Court Dismisses Medical Marijuana Claims Asserted by Employee

Another Washington court has held that an employer lawfully may terminate an employee for using marijuana, even when the employee had a prescription and used it off-duty. After a workplace injury, Safeway tested its employee, Swaw, for drugs. Swaw tested positive for marijuana due to the use of medical marijuana outside of work, subject to a valid prescription. Safeway terminated him for testing positive for a controlled substance pursuant to its drug-free workplace policy. Swaw brought suit, alleging his former employer unlawfully discriminated against him on the basis of a disability. The Court dismissed all of Swaw’s claims, holding that Washington law does not impose upon employers a duty to accommodate medical marijuana in drug-free workplaces and that users of an illegal intoxicant are not a protected class.

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Maine Is Latest State to Restrict Employer Access to Personal Social Media Accounts

Recently, Maine became the latest state to enact legislation restricting an employer’s access to employees’ and job applicants’ personal social media accounts. The new statute prohibits an employer from requiring, coercing or requesting an employee or applicant: to disclose the password or any other means for accessing a personal social media account; to provide access to a personal social media account in the presence of the employer; to disclose to the employer any personal social media account information; to add anyone to the employee’s or applicant’s list of contacts associated with a personal social media account; and to alter settings that affect a 3rd party’s ability to view the contents of a personal social media account.

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Model Social Media Privacy Legislation to be Proposed in 2016

The Uniform Law Commission recently announced that it intends to propose legislation in 2016 that would seek to bring uniformity and consistency to social media privacy legislation across the states, particularly in the 27 states that have not passed such legislation. It would apply both to employer access to employees’ social media account information and to university access to students’ social media account information.

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Increased Prohibitions on Using “E-Verify” (AB 622)

Current California law prohibits the state, or any of its subdivisions, from requiring an employer to use electronic employment verifications systems, such as E-Verify, except when required by federal law or as a condition of receiving federal funds. AB 622 expands the definition of an unlawful employment practice to prohibit an employer from using the E-Verify system at a time or in a manner not required by a specified federal law or not authorized by a federal agency memorandum of understanding to check the employment authorization status of an existing employee or applicant who has not received an offer of employment, except as required by federal law or as a condition of receiving federal funds

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Wisconsin Become Seventh State to Join E-Verify RIDE Program

On November 15, 2015, Wisconsin became the seventh state to participate in the Records and Information from DMV’s for E-Verify (RIDE) program. Driver’s licenses and ID cards account for nearly 80% of the documents used as proof of identity by employees for E-Verify. The Records and Information from DMVs for E-Verify (RIDE) initiative is an enhancement to the E-Verify program that verifies the validity of driver’s license and ID card information by matching the data entered by employers against participating state motor vehicle department records. RIDE enables two-part verification by validating the information on select identity documents in addition to the existing employment authorization check.

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