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Verifile International Newsletter Issue #16

29 Mar 2016

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

EMPLOYEE SPOTLIGHT - SANITTA DHARIWAL

Sanitta Dhariwal

 

Sanitta’s career with Verifile began in 2010 as a HR Interviewer/Expeditor, when her working life was very different!  In 2010 there were only 15 people in the company so over the last 6 years Sanitta’s roles and responsibilities have changed dramatically.  During her Verifilian life she has been responsible for coaching, training and the overall development of not only new starters but some of our more experienced members of staff. Sanitta quickly made her way to the Candidate Team where she and her colleagues were responsible for the front to back process of our business.  Today we have specialist teams responsible for each stage of the process.

Sanitta proved herself as a committed and valued member of staff and was promoted to Senior Client Relationship Specialist, heading up the Client Team.  In addition to this Sanitta has also stepped up to take the role of Senior within the Candidate team on an interim basis.

Where business and people are concerned Sanitta displays great passion and along with other colleagues is regularly arranging charity fund raisers and “Fun Fridays”!

On asking Sanitta what the most important aspect of her role is, she told me “We are dealing with real people, in real life situations and we must remember these key facts! I believe that what we do here at Verifile is imperative to businesses worldwide, as you can buy anything over the internet these days, even fake P45 documents!”

Sanitta is excited to see what the future holds for herself and Verifile and is looking forward to the challenges which lay ahead.

Keep up the fantastic work Sanitta!

In this issue of the International Newsletter:

WORLDWIDE NEWS

- DIDN'T THINK EXECUTIVES LIED ON CVs? WE NAME SEVEN WHO FACED CONSEQUENCES

AFRICA & MIDDLE EAST  
QATAR

- QATAR DRAFTS LAW TO PROTECT AGAINST SPAM

ISRAEL

- ISRAEL POSTPONES POSSIBILITY OF ANY U.S.-EU SAFE HARBOR ENFORCEMENT

ASIA PACIFIC  
AUSTRALIA

- CAN YOU LEGALLY REFUSE TO HIRE A CRIMINAL?

- DRUG AND ALCOHOL TESTING AT WORK DOESN'T DETER

CHINA

- DO YOU CARE ABOUT CHINESE PRIVACY LAW? YOU SHOULD

JAPAN

- PPC EXPECTED TO HAVE A 'CHALLENGING TIME AHEAD'

MALAYSIA

- DATA USERS MAY NOT 'BE FULLY EQUIPPED' TO IMPLEMENT PDP STANDARDS

SINGAPORE

- CRIMINAL RECORDS COULD BE SHARED WITH OVERSEAS LAW ENFORCEMENT AGENCIES

EUROPE

- AGREEMENT ON COMMISSION'S EU DATA PROTECTION REFORM WILL BOOST DIGITAL SINGLE MARKET

- EUROPEAN DATA PROTECTION SUPERVISOR PUBLISHES
PRIORITIES FOR 2016

- EU GENERAL DATA PROTECTION REGULATION

- EU-U.S. PRIVACY SHIELD TO REPLACE SAFE HARBOR

FRANCE

- A LIE IN AN EMPLOYEE’S RESUME MAY LEAD TO A DISMISSAL

- THE RESULTS OF AN ALCOHOL TEST DO NOT JUSTIFY DISMISSAL IF BASED ON UNENFORCEABLE INTERNAL REGULATIONS

GERMANY

- GERMANY ADOPTS LAW TO ENABLE CLASS ACTIONS FOR DATA PROTECTION VIOLATIONS

NETHERLANDS

- ENHANCED POWERS ALLOW PDA TO 'SHOW ITS TEETH'

UNITED KINGDOM

- CRIMINAL RECORD DISCLOSURE CHECKS RULED 'UNLAWFUL'

- 'RIGHT TO RENT' CHECKS IN FORCE 1 FEBRUARY 2016

- UNITED KINGDOM INFORMATION COMMISSION SHOWS 'PRAGMATIC APPROACH' ON DATA TRANSFERS

NORTH AMERICA  
CANADA

- ALARM INSTALLER WITH CRIMINAL PAST ACCUSED OF STEALING CUSTOMERS' CREDIT CARDS AND ID

- FEDERAL COURT AFFIRMS STRICT COMPLIANCE WITH PIPEDA

- PRIVACY AND THE WORKPLACE

- WORKPLACE VIOLENCE & HARASSMENT UNDER BILL 168

- POLICE RECORD CHECKS REFORM ACT, 2015

- PREEMPLOYMENT DRUG AND ALCOHOL TESTING

- ATHLETICS CANADA UPDATES CRIMINAL RECORD CHECK POLICY

RUSSIA & EASTERN BLOC  
RUSSIA

- RUSSIAN DATA PROTECTION AUTHORITY RELEASES 2016 AUDIT PLAN FOR LOCALIZATION LAW

- RUSSIA RELEASES DATA LOCALIZATION INSPECTION PLAN

SOUTH AMERICA  
BRAZIL

- DRUG TESTING FOR PROFESSIONAL DRIVERS

COLOMBIA

- COLOMBIAN DATA PROTECTION AUTHORITY REQUIRES DATABASE REGISTRATION

UNITED STATES

- THE WAY FORWARD FOR FEDERAL BACKGROUND INVESTIGATIONS

- NYU MOVES TO REMOVE CRIMINAL BACKGROUND CHECK QUESTIONS ON COLLEGE APPLICATION FORMS

- COLLEGES THAT ASK APPLICANTS ABOUT BRUSHES WITH THE LAW DRAW SCRUTINY

- A.G. SCHNEIDERMAN ANNOUNCES SETTLEMENTS WITH TWO MAJOR NATIONAL RETAILERS OVER VIOLATIONS OF 'BAN THE BOX' LAW

- IF WELLS FARGO BANK, N.A. OBTAINED YOUR CONSUMER REPORT IN CONNECTION TO A JOB APPLICATION, YOU COULD RECEIVE MONEY FROM A CLASS ACTION SETTLEMENT

- DON'T GET LOST IN THE WEEDS: MEDICAL MARIJUANA IS NOW LEGAL IN NEW YORK

- THE FISSURED WORKPLACE, THE I-9 CONUNDRUM AND THE GIG WORKFORCE

- IMPORTANT GUIDANCE FOR EMPLOYERS CONDUCTING INTERNAL FORM I-9 AUDITS

- CALIFORNIA'S NEW E-VERIFY LAW - GET IT RIGHT OR PAY THE PRICE

 

World wide news

 

DIDN'T THINK EXECUTIVES LIED ON CVs? WE NAME SEVEN WHO FACED CONSEQUENCES

In terms of resumes, lies are on the rise. And while you might think that lying on resumes is less common among candidates for senior management jobs, it turns out that it's actually easier for them to do. This is according to Jay Meschke, president of CBIZ Human Capital Services, who claimed that by the time the manager gets to the fourth or fifth interviewee, he/she is already convinced he/she wants you. "Meanwhile, no one has really read your resume very carefully," Meschke added. "Or at all." A list of businessmen who've inflated their resumes to gain advantage in the corporate world includes: Scott Thompson, CEO of Yahoo!Ronald Zarrella, CEO of Bausch & Lomb; David Edmondson, CEO of RadioShack; Jack Grubman, executive analyst at Salomon Smith Barney; Jeffrey Papows, president of IBM's Lotus; Albert Dunlap, president of Nitec; and Kenneth Lonchar, CFO of Veritas Software.

Read more

Africa Middle East

Israel

QATAR DRAFTS LAW TO PROTECT AGAINST SPAM

The Qatar cabinet has approved a draft privacy law that aims to protect residents against spam messages via email or on mobile phones, the Qatar News Agency said. The draft data privacy law protects personal information that has been collected or processed electronically, or by combining electronic and 'traditional' processing. The draft law includes specific provisions on the right of individuals to protect their personal data, on the obligations of the data controller and processor, on personal data of a private nature, and banning any electronic communications sent "for the purpose of direct marketing to individuals without obtaining prior consent.” The Communications Regulatory Authority said it was drafting a code of conduct that would improve existing guidelines for companies that use text messages and applications such as WhatsApp, Viber and Skype to reach potential customers. The draft law has now been passed to Qatar's Advisory Council.

Read more

Israel

ISRAEL POSTPONES POSSIBILITY OF ANY U.S.-EU SAFE HARBOR ENFORCEMENT

On January 21, 2016, the Israeli Law, Information and Technology Authority (ILITA) announced that it would postpone for the time being any review or enforcement actions on data transfers from Israel to the U.S. that are based on the U.S.-EU Safe Harbor framework. This contradicts an earlier statement by ILITA in October 2015. Israel’s privacy regulations permit the transfer of personal data outside of Israel under certain circumstances, including transfers made “to a country to which the European Union permits transfers.” Because of this, Israel relied on the Safe Harbor framework as a legal basis that enabled data transfers from Israel to the U.S. The Article 29 Working Party and others have urged regulators to adopt a new legal framework by January 31, 2016, to permit the transfer of personal data from the EU to the U.S. that complies with the requirements of the Schrems decision. It is not clear whether the impending deadline will be reached, so ILITA has decided that the best course of action will be to postpone any potential Safe Harbor-related enforcement until there is more clarity on this issue.

Read more

Asia Pacific

Australia

EMPLOYMENT SCREENING NEWS

CAN YOU LEGALLY REFUSE TO HIRE A CRIMINAL?

Employers that refuse to hire someone on the basis of their past criminal convictions could be violating international obligations, legal experts say. While discriminating against a job applicant because they have a criminal history is not unlawful under federal anti-discrimination law, McDonald Murholme lawyer Trent Hancock says this form of discrimination is prohibited by the International Labour Organisation Convention 111. The Convention is a schedule to the Australian Human Rights Commission Act 1986, giving the AHRC the power to investigate any discrimination complaints and alleged breaches, and prepare reports for the Attorney-General which must be tabled in Parliament. Employers can then be ordered to take remedial action as a result of the recommendations of this report, said Hancock. Continue reading to learn Hancock's top tips for HR professionals when dealing with criminal investigations and past convictions in the workplace.

Read more

ALCOHOL & DRUG SCREENING

DRUG AND ALCOHOL TESTING AT WORK DOESN'T DETER ANYONE, SO WHY DO IT?

All Australian government-funded construction sites now require contractors to have a comprehensive fitness-for-work policy that includes mandatory drug and alcohol testing. The amendments apply to all new and existing projects after October 16, 2015, where the Commonwealth has contributed at least A$5 million and 50% of project value or at least A$10 million towards the project. But drug testing is not associated with deterring people from taking drugs, so why do we do it? Employed people are more likely than unemployed people to drink at risky levels. Plus, workers in the building and construction industry have a higher rate of use of some drugs than the general population. To be effective a workplace policy needs to be part of a broader healthy workplace solution that considers drug and alcohol use, mental health, fatigue and other impacts on fitness for work. Workplaces with effective drug and alcohol policies have happier, healthier and more productive staff and reduced absenteeism.

Read more

 

 

China

DO YOU CARE ABOUT CHINESE PRIVACY LAW? WELL, YOU SHOULD

The business case for understanding Chinese privacy law is clear. With China’s growing economic power and large consumer base, any international company seeking to profit from consumers in the region should expend resources on understanding how best to succeed in the Chinese market. This means that privacy officers must pay close attention to how privacy law is developing in China, both to keep up with current developments and to stay ahead of the curve by proactively implementing strategic policies. This three-part series will provide a basic privacy practitioner’s guide to privacy law in China. The last post summarized the basic status of privacy laws and regulations in China. This next post will delve into the cultural and historical factors that influence the development and application of Chinese privacy law. The next post in this series will provide practical privacy considerations, based on these cultural factors, that should be studied by any company trying to do business in China.

Read more

Japan

PPC EXPECTED TO HAVE A 'CHALLENGING TIME AHEAD'

The Personal Information Protection Commission (PPC) was established, on 1 January 2016, and it has replaced the Specific Personal Information Commission (SPPC), an independent data protection authority created to supervise the application of the Act on the Use of Numbers to Identify a Specific Individual in the Administrative Procedure 2013 (the My-Number Act). In addition to the responsibilities related to the My-Number Act, the PPC is required to issue guidelines for the implementation of the Amendments to the Act on the Protection of Personal Information 2003 (the APPI Amendments). The APPI Amendments are expected to introduce several new requirements, in particular concerning data transfers to third parties, cross-borders data transfers. They will also remove the '5,000 individuals' rule, which currently allows companies to be exempted from APPI when they handled less of 5,000 individuals' personal data in the previous six months. It is still too early to identify which of the APPI Amendments topics will be tackled first by the PPC as they are equally important.

Read more

Malaysia 2

DATA USERS MAY NOT 'BE FULLY EQUIPPED' TO IMPLEMENT PDP STANDARDS

The Department of Personal Data Protection (PDP) announced, on 30 December 2015, that the Personal Data Protection Standard 2015 came into force on 23 December 2015 (the PDP Standards). The draft version of the PDP Standards was first published for public consultation in July 2015. The PDP Standards aim to provide guidance in the application of the Personal Data Protection Act 2010 (PDPA), and focus on data security, retention, and integrity. "In my view, awareness about the PDPA among local companies is still relatively low, and given that data protection itself is still a new concept in Malaysia, local companies may not be fully equipped to implement all the requirements set out in the PDP Standards," said Jillian Chia, Partner at SKRINE. "Companies with global operations and those which have operations in jurisdictions with established data protection laws may be better equipped to comply and possibly already in compliance with most of the requirements under the PDP Standards."

Read more

Singapore

SINGAPORE CRIMINAL RECORDS COULD BE SHARED WITH OVERSEAS LAW ENFORCEMENT AGENCIES

Local police could soon share the particulars of convicted individuals, including their criminal records and fingerprints, with foreign law enforcement agencies. A Bill tabled in Parliament on Jan 29 proposes changes to the Registration of Criminals Act. Under the Act, particulars of criminals such as their fingerprints, photographs and DNA information are captured in the Register of Criminals. It is used for example, when the court sentences a repeat offender. The Home Affairs Ministry said this is to strengthen cooperation with enforcement agencies overseas.

But the proposed changes do not include sharing of DNA information. The Home Affairs Ministry also said foreign law enforcement agencies must protect the confidentiality of the information shared, and to use it only for crime prevention or criminal investigation. The ministry said this will boost the effectiveness of agencies here to solve crimes, especially in cases where there are no opportunities to take fingerprints and body samples within 48 hours of arrest.

Read more

 

Europe

DATA PROTECTION & PRIVACY

AGREEMENT ON COMMISSION'S EU DATA PROTECTION REFORM WILL BOOST DIGITAL SINGLE MARKET

The European Commission reached an agreement with the European Parliament and the Council, following final negotiations between the three institutions (so-called 'trilogue' meetings).?More than 90% of Europeans say they want the same data protection rights across the EU - and regardless of where their data is processed: this will soon be a reality. The Reform package will put an end to the patchwork of data protection rules that currently exists in the EU.?Andrus Ansip, Vice-President for the Digital Single Market, said: "Today's agreement is a major step towards a Digital Single Market. It will remove barriers and unlock opportunities

Read more

EUROPEAN DATA PROTECTION SUPERVISOR PUBLISHES PRIORITIES FOR 2016

On January 7, 2016, the European Data Protection Supervisor (the EDPS) published his Priorities for 2016. The EDPS Priorities consists of a cover note listing the strategic priorities of the EDPS in 2016 and a color-coded table listing the European Commission’s proposals that require the EDPS’ attention, per level of priority. In line with the EDPS Strategy 2015-2019 unveiled in March 2015, the EDPS will set his focus on the following areas of strategic importance: Complete the Data Protection Framework; Ensure Adequate Protection of Personal Data in International Data Transfers; and Protect EU Borders and Enhance Security; and Initiatives Related to the European Commission’s Work Programme for 2016

Read more

EU GENERAL DATA PROTECTION REGULATION: THINGS YOU SHOULD KNOW

To say that the newly agreed EU General Data Protection Regulation (GDPR) will change the existing data protection framework in Europe is an understatement. After an intense legislative process of more than 4 years, the all-powerful trio comprising the European Parliament, the Council of the EU and the European Commission have created an ambitious, complex and strict law that is set to transform the way in which personal information is collected, shared and used globally. Those who are used to the regime originally established by the 1995 Data Protection Directive (95/46/EC) may recognise some familiar concepts and principles, but despite the similarities, the effect of the GDPR will be far greater than that of the Directive. In other words, the GDPR aims to take data protection compliance to a new level. Therefore, it is essential that we start to appreciate what is significant about the GDPR. The next two years will be critical to prepare for compliance with what promises to be a game-changing piece of legislation.

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EU-U.S. PRIVACY SHIELD TO REPLACE SAFE HARBOR

The European Commission has announced an agreement with the United States Department of Commerce (DOC) to replace the invalidated Safe Harbor agreement on transatlantic data flows with a new EU-U.S. “Privacy Shield.” The Privacy Shield aims to address the requirements set out by the European Court of Justice in its Oct. 6, 2015 ruling by imposing stronger obligations on companies, providing stronger monitoring and enforcement by the DOC and Federal Trade Commission (FTC), and making commitments regarding access to information on the part of public authorities. In announcing the agreement, Vice-President Ansip noted his belief that the Privacy Shield will benefit both European businesses and citizens, and will prove to be a “much better” solution for transatlantic data flows. Both Commissioner Jourová and Vice-President Ansip expressed their belief that the new Privacy Shield solution would be able to withstand future challenges but that, as the agreement provides for a “living” scheme, the practical work behind the arrangement was just beginning.

Read more

France

EMPLOYMENT SCREENING NEWS

A LIE IN AN EMPLOYEE’S RESUME MAY LEAD TO A DISMISSAL FOR GROSS MISCONDUCT

In any recruitment process, it is legitimate for employers to inquire as to the professional skills and experience of candidates for vacant positions. In order to avoid any excess actions on the employers’ part, French employment law provides that the information requested from any candidate may only serve the purpose of assessing his/her ability to fill the position offered or his/her professional competence. French law also specifies that such information must have a direct and necessary link with the proposed position or with the assessment of the employee’s professional competence. Subject to such safeguards, the French labour code states that the candidate must reply in good faith to such request for information. Unfortunately, and especially in a context of high unemployment and increased expectations from businesses, it is becoming more and more frequent to discover inaccuracies or even outright lies and misrepresentation in candidates’ résumés. In a recent case, the Supreme Court considered an employee committed an act of willful misrepresentation which entitled the employer to terminate his employment.

Read more

ALCOHOL & DRUG SCREENING

THE RESULTS OF AN ALCOHOL TEST DO NOT JUSTIFY A DISMISSAL IF BASED ON UNENFORCEABLE INTERNAL REGULATIONS

Under French employment law, the issue of alcohol consumption at the workplace is taken very seriously as it could entail significant risks, not only for the employee and his/her colleagues, but also for the company in general. Moreover, the employer is bound by a duty of care towards its employees and is required by the French Labour code to prevent employees under the influence of alcohol from working on the company’s premises. In this context, case law permits employers to have recourse to breathalyzer devices in orders to control the alcohol blood level of their employees, particularly where this is justified by the nature of the position held by the employees and provided that it is implemented under the company’s internal regulations, which must be implemented pursuant to a specific procedure and provide for means by which the employees can challenge the results of the test. Against this framework, would an employer be entitled to invoke the results of an alcohol test if the internal regulations providing for such tests have not been implemented according to the procedure relating to the introduction of internal regulations? A recent decision by the Supreme Court answered no.

Read more

Germany 2

DATA PROTECTION & PRIVACY

GERMANY ADOPTS LAW TO ENABLE CLASS ACTIONS FOR DATA PROTECTION VIOLATIONS

On December 17, 2015, the German Federal Diet (Bundestag) adopted a draft law introducing class action-like claims that will enable consumer protection associations to sue companies for violations of German data protection law. The law amends Germany's Act on Actions for Injunctions to allow consumer protection associations to bring lawsuits against companies for improper use of consumer data in violation of German data protection law. At this time, only affected individuals, German criminal prosecutors and data protection authorities have legal standing to sue businesses for breaches of data protection law. Importantly, the law prevents consumer protection associations from bringing claims for violations of international data transfer rules against companies relying on the invalidated Safe Harbor agreement until the end of the day of September 30, 2016 to the extent the transfer of data was based on the Safe Harbor Framework until October 6, 2015.??The draft law still needs to be signed by the president and published in the Federal Law Gazette before becoming law

Read more

Netherlands

ENHANCED POWERS ALLOW PDA TO 'SHOW ITS TEETH'

The Dutch Personal Data Authority (PDA) published, on 7 January 2016, its new Active Disclosure Policy (the Policy) in line with the recent amendments to the Dutch Data Protection Act 2000 (the Amendments), that took effect on 1 January 2016, and which allow the PDA to impose fines up to €820,000. The Policy is meant to provide transparency and clarification about the Amendments' implementation and the PDA's accountability regarding the use of its new enforcement powers. Jeroen Lub and Kevin Van 't Klooster, Partner and Associate at Osborne Clarke said, "Although the Policy does not contain significant changes to the existing practice, it is likely that this is another step towards the PDA taking a more active role going forward. Combine this with the PDA's ability to impose higher fines, the introduction of the data security breach notification obligation and the upcoming General Data Protection Regulation, it becomes clear that the PDA can show its teeth when necessary."

Read more

United Kingdom 2

CRIMINAL RECORDS

CRIMINAL RECORD DISCLOSURE CHECKS RULED 'UNLAWFUL'

Two people who claimed their careers were being blighted by having to disclose their minor criminal convictions to employers have won their case at the High Court. The court ruled the criminal record checks scheme used in England and Wales was "arbitrary" and unlawful. People across the UK are forced to have their criminal record divulged when applying for certain jobs. The Home Office said it would consider whether to appeal against the decision. Lawyers for the pair had told the High Court that people were being unfairly disadvantaged throughout their lives by convictions for minor criminal offences committed years beforehand. Lord Justice McCombe said it was not justifiable or necessary for any individual to have minor offences disclosed indefinitely, from many years ago merely because there is more than one minor offence. He asked the government to make submissions to address faults in the system, in advance of the court making its final order. In the meantime, the scheme will continue to operate as at present.

TENANT SCREENING

'RIGHT TO RENT' CHECKS IN FORCE 1 FEBRUARY 2016

As part of the government's wider reforms to the immigration system, the Immigration Act 2014 (Commencement No.6) Order 2016 and the Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) (Amendment) Order 2016 are being brought into force on 1 February 2016 to ensure that only those with a legitimate right to be in the UK can rent property. The scheme is intended to deter those without the right to live, work or study in the UK from staying here indefinitely. The scheme requires landlords, agents and householders renting out property to check, within 28 days before the start of a new tenancy, the immigration status of prospective tenants and other authorised occupiers aged 18 and over who will use the property as their only or main home to ascertain whether they have the right to be in the UK. With limited exceptions, this applies to both private and social housing and whether the tenancy/licence/subtenancy is written or oral. Landlords who fail to check and are found to be letting property to, and anyone who sublets or allows lodging by, someone who has no right to stay in the UK could face financial penalties of up to £3,000 per tenant.

Read more

DATA PROTECTION & PRIVACY

UNITED KINGDOM INFORMATION COMMISSION SHOWS 'PRAGMATIC APPROACH' ON DATA TRANSFERS

The UK Information Commissioner's Office (ICO) released an interim guidance on data transfers as a result of the Court of Justice of the European Union's judgment invalidating the Safe Harbor Framework, announcing that it 'will not rush' the use of its enforcement powers. Victoria Hordern, Senior Associate at Hogan Lovells LLP said, "It is no surprise that the ICO is adopting a sensible and pragmatic approach in light of the on-going discussions over international data transfers and the new EU-US Privacy Shield." However, the ICO confirmed that it will consider complaints from individuals regardless of the transfer mechanism used and that it will adopt a cautious approach in considering them. As outlined by the Guidance, the impact of the Judgment on standard contractual clauses and binding corporate rules (BCRs) 'is still being analysed'.

Read more

North America

 

Canada 2

EMPLOYMENT SCREENING NEWS

ALARM INSTALLER WITH CRIMINAL PAST ACCUSED OF STEALING CUSTOMERS' CREDIT CARDS AND ID

An Alberta man who wanted to make his home safer by installing an alarm system was appalled to discover the security company sent a man with a lengthy criminal record. The alarm installer would later be investigated for allegedly stealing his credit card information and ID while in his home. "It's unbelievable that somebody that's supposed to be there to make life more secure took advantage of their position and stole my identity," said Gary Brenner. Go Public's investigation found that only four provinces — B.C., Quebec, New Brunswick and Newfoundland and Labrador — require criminal record checks on employees or contractors in the home security industry. Richard McMullen, president of the Canadian Security Association, says there is a misconception that everyone in home security installation would have regular criminal checks. That requirement varies from location to location.

Read more

DATA PROTECTION & PRIVACY

FEDERAL COURT AFFIRMS STRICT COMPLIANCE WITH PIPEDA FOR EMPLOYERS

The Federal Court recently underscored the importance of compliance with the requirements of the Personal Information Protection and Electronic Documents Act (PIPEDA) in a decision that applies only to federal works and undertakings subject to the Act.In Cote v. Day & Ross, 2015 FC 1283, Justice Harrington affirmed that: employers governed by PIPEDAmust respond to requests by employees for their personal information file within 30 days; reasons must be provided when refusing to provide full and complete information in response to a request; a personal information file may also include third-party information about an employee; and that the trend of awarding nominal damages for breach is ongoing. Companies should continue to be alert to their obligations sunder PIPEDA, and the decision in Cote emphasizes the importance of reviewing employee privacy policies and practices to ensure that access requests are addressed in a responsive and timely manner.

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PRIVACY AND THE WORKPLACE

Privacy in the workplace is an evolving area of the law. Currently, the question of whether an employer is subject to privacy laws is largely dependent on the province or jurisdiction in which it operates. However, many employers find that it makes good business sense to establish privacy policies that establish rules and expectations for employees and managers to follow. These policies can assist in finding the balance between the employer's "need to know" and an employee's right to privacy. There are presently four jurisdictions that have privacy laws that apply to employers in the private sector. Employers in the following jurisdictions should ensure that their operations are in compliance with the applicable law:

Federal: The Personal Information Protection and Electronic Documents Act (PIPEDA)
Alberta: The Personal Information Protection Act (Alberta PIPA)

British Columbia: The Personal Information Protection Act (BC PIPA)
Quebec: An Act respecting the protection of personal information in the privacy sector
(Quebec Private Sector Act)

Read more

LEGAL ISSUES

WORKPLACE VIOLENCE & HARASSMENT UNDER BILL 168: A 5-YEAR REVIEW

It has now been just over five years since Bill 168, now known as Part III.0.1 of the Occupational Health and Safety Act (Ontario) (OHSA or the Act), amended the OHSA on June 15, 2010. As Ontario employers are now generally aware, the amendments required employers to establish workplace violence and harassment policies, develop programs to implement those policies and provide employees with information regarding these policies and programs. The purpose of this paper is to review the arbitral, common law and tribunal jurisprudence that has since emerged interpreting the amendments to the OHSA. The paper begins with a summary of Kingston (City) v. Canadian Union of Public Employees, Local 109 (Hudson Grievance), followed by a review of the recent Ontario Labour Relations Board (OLRB or the Board) decision in Hydro One Inc. v. CUSW. The paper also includes a note on Bill 132, which is the Ontario government's proposed new legislation dealing with amendments to various statutes with respect to sexual violence, sexual harassment, domestic violence and other related matters and lessons and takeaways for employers that can be drawn from the case law.

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POLICE RECORD CHECKS REFORM ACT, 2015

On December 1, 2015, Ontario passed the Police Record Checks Reform Act, 2015, which will have concrete implications for the ways in which employers conduct criminal background checks, and the information that will be made available to employers pursuant to these checks. The Act establishes comprehensive province-wide standards governing the type of information that can be disclosed by police in response to record check inquiries, and is intended to remove unnecessary barriers to employment, suitability to hold a license or office, application to an educational program and participation in volunteer activities. The policy rationale underlying the Act is concerned with preventing the inappropriate disclosure of non-conviction and non-criminal records. Perhaps the most significant implication is the fact that it requires that the individual about whom requested information relates first receive and have an opportunity to review the information, and then consent to its disclosure.

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ALCOHOL & DRUG SCREENING

PREEMPLOYMENT DRUG AND ALCOHOL TESTING

The law of drug and alcohol testing in Canada is in a state of evolution. While the Supreme Court of Canada's decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper Ltd, provided important guidance on the strict standard that employers must meet in order to subject employees to random testing, it raised many questions regarding how those principles would be applied to other forms of testing. The trend in the case law suggests that the Court's analysis in Irving Pulp & Paper is not limited to random testing. For example, in Re Mechanical Contractors Association Sarnia v UA Local 663, the Ontario Superior Court of Justice upheld an arbitration award which applied Irving Pulp & Paper to conclude that the employer did not have the right to require pre-employment testing.

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CRIMINAL RECORDS

ATHLETICS CANADA UPDATES CRIMINAL RECORD CHECK POLICY IN WAKE OF OVERSIGHT

Athletics Canada has changed its policy on criminal record checks after discovering that the father and part-time coach of world champion pole vaulter Shawn Barber was convicted in the U.S. of having sex with a high school student. George Barber, who was a teacher and coach in New Mexico, was convicted in 2007 of criminal sexual penetration of a 17-year-old student in 2005 and is a registered sexual offender in that state. Athletics Canada does background checks on coaches but didn’t pick this up because it happened in the U.S., spokesperson Mathieu Gentes said. “We’ve just updated our policies, so for any international coaches there now has to be an Interpol search which would have found this.” The national governing body for track and field also banned him from coaching or representing the association in any capacity.

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Russia and Eastern Bloc

Russia

DATA PROTECTION & PRIVACY

RUSSIAN DATA PROTECTION AUTHORITY RELEASES 2016 AUDIT PLAN FOR LOCALIZATION LAW

On January 13, 2016, the Russian Data Protection Authority (Roscommandzor) released its plan for audits this year to assess compliance with Russia’s data localization law, which became effective on September 1, 2015. The localization law requires companies to store the personal data of Russians in databases located in Russia. The audit plan indicates that the Roscommandzor will audit large, multinational companies doing business in numerous jurisdictions and processing the personal data of Russian citizens.

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RUSSIA RELEASES DATA LOCALIZATION INSPECTION PLAN FOR 2016

In mid-January, the territorial divisions of Russia's Data Protection Authority, Roskomnadzor, uploaded their 2016 plans for conducting inspections of local companies' compliance with Russia's data localization requirements, and there are a number of prominent multi-national companies on the list. This policy of extending the inspections to entities having online activities is in line with the position Roskomnadzor expressed at its November 2015 Personal Data Conference, where Roskomnadzor's representative informed attendees that in 2016 the regulator would focus its enforcement efforts on organizations acting via Internet. At the same conference, a Roskomnadzor representative announced that its inspections as of that date resulted in three administrative fines issued under the data localization requirement. Companies operating in Russia should check these inspection lists to determine whether they, or members of their industry, will be subject to audits in the upcoming year.

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South America

Brazil

DRUG TESTING FOR PROFESSIONAL DRIVERS

Enacted in the beginning of 2015, Law 13,103 introduced new rights and rules for professional drivers, including a drug testing requirement. In November 2015 the Ministry of Labour and Employment issued rules on drug testing, which will come into force in March 2016. According to the new rules, all professional drivers involved in road passenger transport and road cargo transport must undergo drug testing. Drug tests must be performed both before hiring and on termination. In addition, tests must be able to detect any psychoactive substance consumed at least 90 days before the date of examination. Under the law, employers can set out a drug testing policy, provided that employees have free access to its content and that it does not conflict with labour and employment laws. The Ministry of Labour and Employment has imposed these restrictions in order to preserve employees' privacy. Drug testing may help employers and employees to avoid labour accidents and identify and provide adequate treatment for drug-addicted employees. Employees who refuse to undergo drug testing may be dismissed with cause.

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Columbia

COLOMBIAN DATA PROTECTION AUTHORITY REQUIRES DATABASE REGISTRATION

The Colombian Data Protection Authority (the Superintendence of Industry and Commerce, or SIC) has issued regulations requiring all data controllers that are (i) private legal entities registered in Chambers of Commerce in Colombia (i.e., incorporated in Colombia) or (ii) partially government owned corporations ("sociedades de economía mixta") to register their databases by November 8th, 2016. ??The failure to register or update registration information would constitute a violation of Colombia's Data Protection Laws. We anticipate that the SIC will use the Registry as a benchmark for investigating and issuing sanctions related to breaches of the Data Protection Laws.

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United States

THE WAY FORWARD FOR FEDERAL BACKGROUND INVESTIGATIONS

The Federal Government announced a series of changes to modernize and strengthen the way we conduct background investigations for Federal employees and contractors and protect sensitive data. These changes include the establishment of the National Background Investigations Bureau (NBIB), which will absorb the U.S. Office of Personnel Management's (OPM) existing Federal Investigative Services (FIS), and be headquartered in Washington, D.C. This new government-wide service provider for background investigations will be housed within the OPM. Its mission will be to provide effective, efficient, and secure background investigations for the Federal Government. Unlike the previous structure, the Department of Defense will assume the responsibility for the design, development, security, and operation of the background investigations IT systems for the NBIB.

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NYU MOVES TO REMOVE CRIMINAL BACKGROUND CHECK QUESTIONS ON COLLEGE APPLICATION FORMS

New York University is taking steps to remove the criminal background check question on their college application forms. By doing this, prospective students would no longer have to divulge if they've run afoul of the law. Could this be the new frontier of Ban the Box? Since 2007, the ubiquitous college entry form used by more than 600 schools has required applicants to disclose their criminal backgrounds. "Especially in the context of high rates of school discipline and incarceration among people of color, it seems vital to pose two questions about the checkboxes," NYU's vice president for enrollment management MJ Knoll-Finn said in a letter to the Common Application chief Paul Mott and board chair Gil J. Villanueva. Bottom line is that universities should weigh these important concerns before "opting-out" on this complex issue. Of course, we all want to be fair in our employment and admission standards but we need to understand the potential risks of doing so.

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COLLEGES THAT ASK APPLICANTS ABOUT BRUSHES WITH THE LAW DRAW SCRUTINY

The online admissions application for Auburn University appears simple, until you get to this question: "Have you ever been charged with or convicted of or pled guilty or nolo contendere to a crime other than a minor traffic offense, or are there any criminal charges now pending against you?" Those who check "yes," even though they have never been convicted of any crime, face extra scrutiny — a follow-up call from the admissions office asking for additional information. Auburn is one of 17 universities in the South that include broad questions on their admissions applications about any contact with the legal system or the police that applicants might have had — even an arrest, with no conviction — according to the Lawyers' Committee for Civil Rights Under Law, an advocacy group. The universities are now the focus of an inquiry by the organization, which says such questions unfairly penalize minorities, who tend to face arrest more frequently and, as a result, could face higher admissions hurdles.

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A.G. SCHNEIDERMAN ANNOUNCES SETTLEMENTS WITH TWO MAJOR NATIONAL RETAILERS OVER VIOLATIONS OF 'BAN THE BOX' LAW

Attorney General Eric T. Schneiderman announced settlements with two major national retailers, Big Lots Stores and Marshalls, to "Ban the Box" on initial employment applications at their Buffalo stores. The settlement will ensure that both companies comply with the local Buffalo law that prohibits employers from inquiring into criminal history on initial employment applications. In addition to satisfying the requirements of the local ordinance, both companies have taken the additional step of removing such inquiries from applications to any store in New York State. "Obtaining meaningful employment is often the most crucial step towards reducing the chances of recidivism among formerly incarcerated persons," said Attorney General Schneiderman. "That is why my office is committed to breaking down barriers that impede rehabilitation, especially those that prevent fair access to employment."

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IF WELLS FARGO BANK, N.A. OBTAINED YOUR CONSUMER REPORT IN CONNECTION TO A JOB APPLICATION, YOU COULD RECEIVE MONEY FROM A CLASS ACTION SETTLEMENT

Wells Fargo will pay twelve million dollars related to allegations for obtaining consumer reports (background checks) in connection with job applications. Plaintiff Terrell Manuel applied for and was offered a job at Wells Fargo Bank, N.A. (Wells Fargo). At the time Manuel applied for a job, Wells Fargo obtained an employment-purposed consumer report, sometimes called a background check, about Manuel from First Advantage Background Services Corp. Manuel alleges that Wells Fargo took an adverse action against him by denying his employment based on the results of his employment-purposed consumer report. Manuel alleges Wells Fargo did not provide a copy of his consumer report and other disclosures required by 15 U.S.C. § 1681b(b)(3)(A)(ii) at least five business days before denying his employment as a result of his consumer report.

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DON'T GET LOST IN THE WEEDS: MEDICAL MARIJUANA IS NOW LEGAL IN NEW YORK

The Compassionate Care Act, which was signed into law in July 2014, legalizes and regulates the manufacture, sale and use of medical marijuana in New York. The Act sets forth specific conditions under which a patient may obtain medical marijuana.

The Act provides that certified patients shall not be subjected to "disciplinary action by a business" for exercising their rights to use medical marijuana. It also contains a nondiscrimination provision, which states that being a patient for whom a doctor in New York State has prescribed medical marijuana is a "disability" under the New York State Human Rights Law.

Even so, New York employers will still be able to maintain a safe workplace by restricting employees from performing their duties while under the influence of marijuana. For example, employers may still adopt and maintain reasonable policies or procedures – including drug testing – to ensure that an individual is not working while under the influence of a controlled substance (including marijuana) or engaging in the illegal use of drugs.

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THE FISSURED WORKPLACE, THE I-9 CONUNDRUM AND THE GIG WORKFORCE

Millions of Americans are now involved in some form of sporadic, non-traditional related job, whether it is called freelancing, temping, ubering, etc. In some instances, these individuals are clearly in business for themselves. There are, however, an increasing number of "gigs" which closely resemble traditional employment. According to David Weil, administrator of the Department of Labor's Wage and Hour Division, the employment relationship between workers and businesses in the U.S. has become "fissured" apart as companies seek to outsource certain non-core tasks to separate companies or individuals. So what does the DOL have to say about being a joint employer? And what impact (if any) will this guidance have on I-9 compliance? Enter the I-9 Conundrum: I-9 regulations specifically exempt "independent contractors." However, what if you are misclassifying your employees as independent contractors? What if you are actually a "joint employer" for purposes of completing the I-9? This raises a potentially sticky I-9 problem for employers.

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IMPORTANT GUIDANCE FOR EMPLOYERS CONDUCTING INTERNAL FORM i-9 AUDITS

All employers are required to complete a Form I-9, Employment Eligibility Verification to verify their new hires' identity and employment eligibility. The Department of Homeland Security Immigration Customs and Enforcement (ICE) and the Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) partnered and published guidance for employers on internal Form I-9 audits in compliance with the Immigration and Naturalization Act (INA). The guidance gives important information for employers, including: the purpose and scope of an internal audit; considerations before conducting internal audits; how to avoid conducting internal audits that are discriminatory; what information should be communicated to employees during an internal audit; and procedure for correcting errors or omissions.

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CALIFORNIA'S NEW E-VERIFY LAW - GET IT RIGHT OR PAY THE PRICE

Under a new California law that took effect on January 1, 2016, California employers may face civil penalties of up to $10,000 for misusing E-Verify, the federal electronic employment verification system some employers use to verify employment eligibility of newly hired employees. The new E-Verify law makes it more difficult for some California employers to comply with both federal and state laws relating to workers' employment eligibility. California's new E-Verify law is primarily aimed at employers who choose to use E-Verify without being required to do so under federal law or as a condition of receiving federal funds. Given that each unlawful use of the E-Verify system constitutes a separate violation for purposes of the new law's penalty provision, an employer with non-compliant practices could quickly accrue significant penalties. Accordingly, California employers who use the E-Verify system should review their practices to ensure compliance.

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