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Verifile International Newsletter Issue #19

11 Oct 2016

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

Candidate communications

Many of our clients use our candidate management service, where if queries arise during the screening process Verifile liaises directly with the candidate being screened. When Verifile contacts candidates, we always pick up the telephone and follow up with an email confirming our conversation. If however we reach a voicemail we always email explaining our query. These follow up emails have previously been copied to the person who placed the order with us. After receiving feedback from many of our clients, we have decided to only copy you into our last follow up email to the candidate. By this point, we have already contacted the candidate by telephone and email twice, and have still not received a response to our query. If you would like to continue to be copied in to all emails to your candidates, then please do not hesitate to contact us.

Verifile Honoured by Mayoral Visit

On Wednesday 28th September, Verifile was proud to receive a visit from the Mayor of Bedford, Mayor Dave Hodgeson MBE.

The Mayor was invited to tour our offices, meet the staff and have a demonstration of our advances in software development.

Mayoral Visit 2

 

In this issue of the International Newsletter:

AFRICA & MIDDLE EAST  
MAURITIUS

- Mauritius Joins the Data Protection Convention - “Convention 108”

ASIA PACIFIC

- APEC Cross Border Privacy Rules Advancing in Asia

INDIA

- Government Forms Panel to Study the Feasibility of Adopting new Financial Year

PHILLIPPINES

- Philippines Finalizes Data Privacy Act Implementing Rules

SINGAPORE

- When in Doubt, Shred Documents Containing Personal Data, says Singapore Privacy Watchdog

SOUTH KOREA

- Seoul to Require Criminal Records of new Foreign Sailors

EUROPE

- European Restrictions on Computer Profiling

- EU Member States Approve Privacy Shield

- Advocate General Finds Member States May Not Breach EU Laws over Electronic Communications Retention

- Ministers of European Parliament Seek Better Information Sharing of Criminal Records for EU National

FRANCE

- French Parliament Rejects Data Localization Amendment

GERMANY

- The Bavarian DPA Issues Paper on Certifications Under the GDPR

- Hamburg's DPA aiming to challenge Privacy Shield

UNITED KINGDOM

- Bogus Job Applicants Not Protected by Equality Law

- CV's:  The Whole Turth?

- Third of Employers Have Turned Down Candidates Because of Their Social Media Profile

- Private Tutors 'Must Face Criminal Records Checks'

- New Immigration Rules Turn up the Pressure on Employers

- More Than 13,000 Foreign Criminals Awaiting Deportation From UK

- Employers opt for Temporary Staff as Permanent Recruitment Plummets

- UK Prime Ministerial Candidate Embroiled in False CV Claims

NORTH AMERICA  
BERMUDA

- Bermuda Passes Information Privacy Bill

CANADA

- Marijuana and the Canadian Workplace

- Drug Testing in the Workplace - An Update

- Bartender Fired for Smoking Marijuana at Work

RUSSIA & EASTERN BLOC

 

RUSSIA

- Russia Data Localization Update:  Results from Regulatory Inspections Clarify Enforcement Approach

SOUTH AMERICA  
CHILE

- Chile Should Amend Privacy Law to Meet EU Standards

UNITED STATES

- 'Professional Plaintiff' Uses Credit Law to Threaten Companies, Win $23,000 in Settlements

- No Background Check on Ex-city Contractor Charged in $43,000 Theft

- EU Data Transfers to the U.S.: Considering Your Options after Privacy Shield

- University of Chicago Study Suggest that Ban-The-Box Has Unintended Consequences

- Trends in the "Ban the Box" Movement: Recent Developments in City Ordinances

- Portland's Ban-the-Box Law Takes Effect, Administrative Rules Provide Clarity

- Louisiana Legislature Passes New Law Dealing with Employment of Sex Offenders

- Serial FCRA Plaintiff Falls Short

- Racial Profiling in Hiring: A Critique of New "Ban the Box" Studies

- Benefit of Early Privacy Shield Adoption

- Privacy shield Certifications Begin Trickling In

- Tompkins county Moves to 'Ban the Box'

- LA Schools Deny Job-Seekers Second Chance

- Criminal Histories are no Longer an Automatic Bar to Employment in Illinois Schools

- Governor Baker Signs Legislation Supporting Innovative Transportation Options

- Families of Charleston Shooting Victims sue FBI Over Background-check Error

- Rhode Island Passes Ridesharing Bill with Stipulation for Use of NAPBS Accredited Firms

- Courthouse Shooter was School Volunteer, Prompts Changes for Background Checks

- Background Screening Class Certified in Obsolete Information Case

- USA: FTC's Data Security Expectations "Abundantly Clear" Following LabMD Decision

- Illegal in Massachusetts: Asking Your Salary in a Job Interview

- Indiana Passes New Legislation Restricting Criminal history Information Reported in Background Checks

- Spokeo Based Motion to Dismiss Filed in Pennsylvania Federal Court

- Supplemental Briefs Submitted to the Ninth Circuit for Decision in Spokeo Case

 

 

Africa Middle East

 

Mauritius

Mauritius Joins the Data Protection Convention - “Convention 108”

Republic of Mauritius became the second non-European state – after Uruguay in 2013 – to ratify the Convention for the protection of individuals with regard to Automatic Processing of Personal Data, also known as “Convention 108”, and its Additional Protocol, taking the total number of states parties to the treaty to 49. The Privacy Commissioner of the Republic of Mauritius, Drudeisha Madhub, deposited the accession documents in the presence of the Secretary General of the Council of Europe, Thorbjørn Jagland, during an international conference held in Strasbourg under the theme “Convention 108: from a European reality to a global treaty”. Morocco, Senegal and Tunisia have already been invited to accede to the treaty and will most likely be the next countries to become parties. The treaty will enter into force in respect of the Republic of Mauritius on 1 October 2016. “Convention 108” is the only existing international treaty which grants individuals the right to the protection of their personal data, aiming also to prevent any abuses which may accompany the processing of these data.

Read more

Asia Pacific

APEC Cross Border Privacy Rules Advancing in Asia

Privacy-focused events in China, South Korea and Singapore have highlighted the growing momentum of APEC’s Cross Border Privacy Rules (CBPR) system in the region. Recently, China’s Ministry of Commerce, Foreign Ministry, General Administration of Customs and the China International Electronic Commerce Centre (CIECC) hosted the 6th APEC E-Commerce Business Alliance (ECBA) Forum and the Korea Internet and Security Agency (KISA) hosted the 5th International Conference on Information Security in Seoul, South Korea. The increased focus on CBPRs in Asia comes as Japan recently put forward JIPDEC as the country’s first ‘Accountability Agent’ under the CBPR system. Japan’s Ministry of Economy Trade and Industry has confirmed that CBPR-certification will serve as a basis for transfer of personal data out of Japan under the implementing guidelines for Japan’s recently-reformed privacy law. TRUSTe has been an APEC-endorsed Accountability Agent since 2013.

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India

Government Forms Panel to Study the Feasibility of Adopting new Financial Year

The government has constituted a committee to study the feasibility of adopting a new financial year. India currently follows the April-March financial year as opposed to the calendar year in most countries. The committee headed by former chief economic advisor Shankar Acharya has to submit its report by December 31, 2016. "The committee will examine the merits and demerits of various dates for the commencement of the financial year including the existing date (April to March), taking into account the various relevant factors," the finance ministry said in a statement. India is the only one among the big countries to follow the April-March financial year, which makes international data comparisons difficult. The LK Jha Committee appointed in May 1984 to look into the matter had recommended switching over to the calendar year. The government did not accept the recommendation. The committee has also been tasked with suggesting a transition road map should it suggest a new financial year.

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Phillipines

Philippines Finalizes Data Privacy Act Implementing Rules

The Philippine’s Data Privacy Act of 2012 mandated the creation of the National Privacy Commission to implement, enforce and monitor compliance with the Act and soon after its finalization, issued draft implementing rules and regulations, which will significantly impact business in the Philippines and on the IT and business process outsourcing industry. Features of the IRRs include: The scope of protected information, data protection principles, data sharing, data protection officers, outsourcing of data processing activities, security measures, mandatory breach notification, penalties, and data subject rights.

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Singapore

When in Doubt, Shred Documents Containing Personal Data, says Singapore Privacy Watchdog

Paper containing personal information must be shredded into small pieces and not dumped in unsecured dumpsters. Similarly, personal data stored on electronic media such as computer hard disks, USB drives or DVDs must be wiped clean using specialised software to avoid accidental data leak. The clarifications, contained in new advisory guidelines issued to organisations, have come from Singapore's privacy watchdog. The Commission said organisations should build up the habit of shredding documents among employees. It also recommended industrial shredders with cross-cutting capability, allowing paper to be sliced in at least two different directions. This creates small individual pieces of paper that are harder to reassemble. The Commission also addressed in detail the risk of becoming a target for "dumpster diving" or theft, saying documents being sent for destruction should not be kept in unsecured boxes or containers. Organisations that fail to protect consumers' personal data can be fined up to $1 million per breach.

Read more

South Korea

Seoul to Require Criminal Records of new Foreign Sailors

Foreign sailors seeking to work for South Korean ships may be required to submit their criminal records while their South Korean captains and colleagues will be required to undergo anti-racism education, the government said. The measures are largely aimed at preventing on-board crimes. They follow the recent alleged homicide of a South Korean captain and an engineer aboard a South Korean fishing boat by two Vietnamese fishermen. Under the government measures, approved at a Cabinet meeting, all new foreign sailors seeking to work on a South Korean ship must submit a criminal background check. Indictments in previous crimes may not directly prevent employment, but they may provide some reference to South Korean employers when deciding whether to hire a foreign sailor, the Ministry of Oceans and Fisheries said in a press release.

Read more

Europe

European Restrictions on Computer Profiling

May 25, 2018, the EU General Data Protection Regulation (GDPR) will come into effect requiring companies that process personally identifiable information of EU residents to comply with a significant number of enhanced data-protection requirements. One of these requirements is an individual’s “right to explanation” of an algorithmic decision made about him or her by a machine.This right will affect companies that monitor the behavior of European residents for the purposes of data-subject “profiling” that produces legal effects or significantly affects the natural persons whose personal information is being collected and analyzed. This includes “profiling” that consists of any form of automated processing of personal data evaluating the personal aspects relating to a natural person, in particular to analyze or predict aspects concerning the data subject’s performance at work, economic situation, health, personal preferences or interests, reliability or behavior, location or movements.

Read more

EU Member States Approve Privacy Shield

On July 8, 2016, EU representatives on the Article 31 Committee approved the final version of the EU-U.S. Privacy Shield to permit transatlantic transfers of personal data from the EU to the U.S. The Privacy Shield is a successor framework to the Safe Harbor, which was invalidated by the Court of Justice of the European Union in October 2015. The Article 31 Committee’s approval comes after many months of criticism from various EU bodies of the European Commission’s initial February proposal, including the European Parliament, the Article 29 Working Party and the European Data Protection Supervisor. Andrus Ansip, Vice President for the Digital Single Market on the European Commission, and Vera Jourová, European Commissioner for Justice, Consumers and Gender Equality, said in a joint statement that “the EU-U.S. Privacy Shield will ensure a high level of protection for individuals and legal certainty for business. It is fundamentally different from the old Safe Harbour.”

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Advocate General Finds Member States May Not Breach EU Laws Over Electronic Communications Retention

On July 19, 2016, Advocate General Saugmandsgaard Oe, published his Opinion on two joined cases relating to data retention requirements in the EU, C-203/15 and C-698/15. These cases were brought following the Court of Justice for the European Union’s (CJEU’s) decision in the Digital Rights Ireland case, which invalidated Directive 2006/24/EC on data retention. The two cases, referred from courts in Sweden and the UK respectively, sought to establish whether a general obligation to retain data is compatible with the fundamental rights to privacy and data protection under EU law. In his Opinion, the Advocate General stresses the need to find a balance between a nation’s need to effectively fight serious crime, such as terrorism, against individuals’ fundamental rights. The Advocate General found that a general obligation to retain data may be compatible with EU law, although any action from an EU Member State against the possibility of imposing such an obligation is subject to strict requirements. The national courts are responsible for determining whether or not such requirements are satisfied.

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Ministers of European Parliament Seek Better Information Sharing of Criminal Records for EU National

Civil Liberties Committee Ministers of European Parliament (MEP) called for the addition of non-European Union (EU) nationals to the European Criminal Records Information System (ECRIS) that EU countries use to exchange information on the criminal convictions of EU citizens. The committee supported the proposal by a vote of 45-2, with four abstentions. The new directive is a key measure under the European Agenda on Security and an important tool for fighting cross-border crime and terrorism. “We need to restore public confidence that we are able to monitor who comes into the EU, and to find people who could represent a threat,” Timothy Kirkhope, minister of parliament in the EU, said. “Checking people against our existing criminal records databases, and making exchanging that information much easier, will go a long way towards showing that we can find those people who mean us harm, amongst the vast majority who do not.”

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France

French Parliament Rejects Data Localization Amendment

On June 30, 2016, a joint committee composed of representatives from both chambers of the French Parliament (Joint Committee) reached a common position on the French ‘Digital Republic’ Bill that rejects the data localization amendment previously approved by the French Senate, but significantly amends other aspects of the French Data Protection Act. One of the issues discussed by the Joint Committee was the amendment (corrigendum No. 473) adopted by the French Senate on April 27, 2016. This amendment added a data localization provision to the French Data Protection Act, requiring that personal data be stored in a data center located in the EU and not transferred outside of the EU. The French Government was against this amendment which ignored current and future cross-border data transfer restrictions. Unsurprisingly, the amendment was deleted by the Joint Committee. The French Digital Republic Bill now needs to be formally adopted by both chambers of the French Parliament.

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Germany 2

The Bavarian DPA Issues Paper on Certifications Under the GDPR

On June 22, 2016, the Bavarian Data Protection Authority (DPA) issued a short paper on certifications under Article 42 of the General Data Protection Regulation (GDPR). The GDPR will become effective on May 25, 2018. This paper is part of a series of papers that the Bavarian DPA will be issuing periodically on specific topics of the GDPR to inform the public about what topics are being discussed within the DPA. The DPA emphasizes that these papers are non-binding. The GDPR allows DPAs to issue data protection certifications to companies. According to the Bavarian DPA, such certifications would allow companies to demonstrate that their data processing activities comply with the requirements of the GDPR; however, certified companies must still comply with the law and can be subject to supervision by DPAs. The Bavarian DPA believes that certification under the GDPR has great potential and can provide clarity as to whether data processing operations comply with legal requirements under data protection law.

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Hamburg's DPA aiming to challenge Privacy Shield

The EU-U.S. Privacy Shield register may now be open for business, and Europe's privacy regulators may have collectively (though grudgingly) agreed to assess its progress in a year rather than kick and scream about its flaws now, but at least one regulator is still itching for a fight. Johannes Caspar, the Hamburg data protection authority, is keen to ask the Court of Justice of the European Union whether it thinks the Commission's decision to strike the data-transfer deal was valid. The ECJ, of course, was the court that declared Privacy Shield's predecessor, Safe Harbor, to have been an invalid "adequacy decision." Caspar is hoping that upcoming legal changes in Germany will make it possible for the country's DPAs to challenge adequacy decisions as soon as next year. It is by no means certain that the changes will make this possible, though.

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United Kingdom 2

Bogus Job Applicants Not Protected by Equality Law

The European court recently confirmed that job applicants must have a genuine interest in the role for which they are applying in order to be protected by the Equality Law. In a recent German trial, the company involved rejected an applicant, who, in turn, filed a claim for age and sex discrimination. The claims were dismissed by the lower German courts, but on appeal, the Federal Labour Court explored the protection of those who apply for jobs in order to bring compensation claims. The company faces the difficulty of establishing that applicants have no genuine interest in the role.

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CVs: The Whole Truth?

In light of the recent political scandal in which a main political party in the UK finessed areas of her CV, it is recommended that employers explore their legal positions in the discovery of a fraudulent CV. If discovered during the pre-employment process, employers have the right to withdraw an offer before acceptance of the offer by the employee and if discovered during employment, the severity of the dishonesty should be judged on a case-by-case basis. Employers are encouraged to perform checks on employment history and assess verbiage in offers and contracts, as well as employee handbooks.

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Third of Employers Have Turned Down Candidates Because of Their Social Media Profile

More than half (56%) of UK employers admit that candidates’ online profiles actively influence their hiring decisions, according to a new survey that highlights the increasing integration of social media into the recruitment process. The research, from jobs board Monster and YouGov, suggests most HR professionals actively consult social networking sites such as Twitter, LinkedIn and Facebook during the hiring process. Around a third (36%) of the 4,000 HR professionals surveyed said they had declined to interview a candidate, or had rejected an applicant they had already interviewed, after checking their social media posts, while 65% Googled prospective employees. The process works both ways, however: 28% of jobseekers said their view of an organisation was influenced by what they read about it on websites such as Glassdoor, and they were less likely to apply if they formed an unfavourable impression.

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Private Tutors 'Must Face Criminal Records Checks'

All self-employed tutors should be legally required to have a criminal records check before they can offer private lessons to children in the UK, children's charity the NSPCC says. A current loophole means self-employed tutors do not have to undergo Disclosure and Barring Service checks. The NSPCC says this loophole creates an "ideal scenario" for "any predatory adult seeking to harm children". The Home Office said it would "carefully consider" the comments. Many tutoring agencies will insist on an up-to-date check on their staff, but some do not - and individuals setting up privately are not legally required to have a DBS certificate. Employers and licensed bodies can request DBS checks, but individuals cannot, meaning parents and tutors cannot run such checks. Now, the NSPCC is calling for a tightening of the law to ensure every individual giving private tuition undergoes a check, saying the same rules should apply for self-employed tutors as for classroom teachers.

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New Immigration Rules Turn up the Pressure on Employers

New legislation has come into force to increase penalties for employers who take on illegal migrant workers. The Immigration Act 2016 makes it easier to hold bosses accountable for taking on illegal migrant workers, giving courts the power to impose a fine of up to £20,000 and a prison sentence of up to five years for businesses and individuals who fall foul of the new law. It also includes an additional power to shut a business down for 48 hours if an employer is found to have persistently broken the law. So how do you protect yourself and your business? How to prevent legal migrant workers being affected by false claims that cause stress and affect productivity? And how do you avoid allegations that checks are discriminatory?

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More Than 13,000 Foreign Criminals Awaiting Deportation From UK

More than 13,000 foreign criminals are awaiting deportation from the UK, including thousands of European citizens, according to a report by MPs, which warns that the failure to remove a population "the size of a small town" could undermine public confidence in the UK’s EU membership. In findings that were immediately seized upon by Brexit campaigners, the Home Affairs Select Committee said that "clear inefficiencies" in the process of sending foreign national offenders (FNOs) back to fellow EU member states would lead people to "question the point of the UK remaining a member of the EU". While the pace of removals has increased in recent years, committee chair Keith Vaz, who supports a Remain vote, said that the Home Office should have done better. While the majority of FNOs in the UK are in prisons, nearly 6,000 were living in communities at the end of 2015, the report said. Of the predominant nationalities among FNOs, the top three were all EU countries: Poland, Ireland and Romania.

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Employers opt for Temporary Staff as Permanent Recruitment Plummets

The number of people being hired on a permanent basis has dropped more quickly than at any point since May 2009, according to a widespread study of recruiters. The Recruitment & Employment Confederation (REC) report, compiled by Markit, found that nearly 38% of recruiters placed fewer people in permanent positions in July, compared with 32% in June. July was the second successive month that placements had decreased. Many respondents indicated that uncertainty around Brexit had prompted clients to seek short-term staffing solutions, with temporary and contract hiring increasing among 34% of those surveyed, up 2% on June. REC chief executive Kevin Green said: “Demand for staff remains strong with vacancies continuing to rise, but the sharp fall in placements suggests that businesses are highly cautious about committing to new hires.”

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UK Prime Ministerial Candidate Embroiled in False CV Claims

Andrea Leadsom, who is in the running to be the UK’s next prime minister, has come under criticism after a CV was published that allegedly exaggerated some of her previous roles. This is yet another instance of a high profile public figure coming under scrutiny for possible CV embellishments, serving as a warning to HR to properly screen all candidates during the recruitment process. This case serves as a warning to HR that even people in society’s higher echelons can possibly alter their resumes, putting a real onus on firms to conduct background checks on all applicants.

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North America

Bermuda

Bermuda Passes Information Privacy Bill

The island’s first information privacy legislation has been passed in the Senate, but is likely to be delayed two years to allow organisations to prepare. However, a privacy commissioner will soon be enacted, national security minister Jeff Baron told the Upper House, opening the way for public consultation. The Personal Information Freedom Act covers the use of personal information in electronic and hard-copy form, by all businesses, organisations, charities and government departments. Baron said it would make the island “attractive to businesses wishing to locate from both sides of the Atlantic”. The Bill will usher in a cultural shift for Bermuda, One Bermuda Alliance senators Lynne Woolridge and Georgia Marshall said in voicing their support, while Michael Fahy, the tourism minister, said it would bring a complete legal shift in terms of international business. Baron called the right to protect personal information “a fundamental human right”.

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Canada 2

Marijuana and the Canadian Workplace

Although non-medical and recreational use of marijuana remains illegal in Canada, its use for medical purposes is permitted under the Regulations to the Controlled Drugs and Substances Act, creating a need for employers to ensure that their policies accommodate employees’ needs while balancing impairment and safety concerns. It is recommended that employers require medical proof of prescription and details regarding the frequency, volume and method of ingestion, as well as updating drug and alcohol policies; modifying human rights and accommodation policies; introducing protocols; establishing a framework for testing impairment; and training management on the application of all policies.

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Drug Testing in the Workplace - An Update

In 2013, the Supreme Court of Canada released its decision in Irving Pulp, a case which arose when the union representing Irving’s workers brought a grievance challenging the company’s mandatory random alcohol testing policy. The Supreme Court held that the little evidence produced by Irving Pulp of substance abuse problems with its workforce was not sufficient to override the privacy rights and interests of its employees. Employers continue to face an uphill battle and it has proved to be a difficult task (some would say impossible) to develop an enforceable drug and alcohol testing policy. Despite other cases on this topic, the test established by the Supreme Court in Irving Pulp remains the test to meet. Employers must continue to strike a balance between the health and safety concerns of the workplace and the privacy interests of the employees.

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Bartender Fired for Smoking Marijuana at Work

A B.C. bartender has lost his human rights complaint after he was dismissed for smoking marijuana on shift. The employer had a policy that prohibited consumption of drugs or alcohol while on shift. The policy was meant to ensure that employees – including bartenders, who monitored customers’ consumption of alcohol – did not themselves become intoxicated. After being caught smoking marijuana, the employee claimed that he used it for a “chronic pain condition”. He filed a complaint with the B.C. Human Rights Tribunal against his employer, the executive chef and general manager, and the restaurant owners, claiming that his dismissal was discriminatory because of his “disability”. The B.C. Human Rights Tribunal concluded that there was no evidence that the employer was aware that the bartender’s marijuana use was related to physical disability. Therefore, the employee had not proven that there was a connection between his disability and his termination. As such, his human rights complaint was dismissed.

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Russia and Eastern Bloc

Russia

Russia Data Localization Update: Results from Regulatory Inspections Clarify Enforcement Approach

Roskomnadzor has been conducting compliance inspections both according to the plan and in individual cases when it has reason to do so. The results of those inspections and recent comments by the Head of Roskomnadzor, Mr. Zharov, all yield insights into the regulatory expectations and the risk of noncompliance with the data localization law. In an interview, Mr. Zharov, announced that Roskomnadzor has found most of the companies that it has inspected this year to be compliant with the data localization requirement. In particular, he commented that out of 645 inspections, Roskomnadzor has found only four violations of the data localization requirement. While it is clear that the regulators still expect Russian personal data to be stored in Russia, companies may have more of a grace period to cure instances of noncompliance than originally expected, so long as they are making a good faith effort to comply.

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South America

Chile

Chile Should Amend Privacy Law to Meet EU Standards

Chile's antiquated data protection law has drawn the ire of the European Union and is well behind that of other South American countries' standards. However, the Chilean legislature has heard the plea for increased data security and privacy standards and is looking to move towards a modern model. President Michelle Bachelet announced that lawmakers will begin discussing improvements to the nations' data protection and privacy law. Regulating data use is necessary to develop Chile's digital economy and the proposed law will strike “the right balance between privacy and transparency,” she said. Absent some fundamental change to the law, Chile will be unable to effectively compete for Spanish language services outsourced from the EU, such as customer call centers for Spanish banks. In short, the EU will continue to consider Chile as providing an inadequate level of protection for personal information unless the framework law changes. But whether those substantial changes will reach fruition remains unclear.

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United States

'Professional Plaintiff' Uses Credit Law To Threaten Companies, Win $230,000 In Settlements

In January 2015, Groshek sent a 2,300-word missive to representatives for Time Warner Cable, threatening to sue for violations of a consumer-protection law called the Fair Credit Reporting Act. The message relayed Groshek's confidence that he could win a huge verdict at trial — "think upwards of $5-10 million," he wrote — unless the company paid him a six-figure settlement to go away. Within a recent 18-month stretch, Groshek applied to 562 jobs, including one at Time Warner Cable. But it doesn't appear he had any intention of keeping a job long-term. Instead, his aim seems to be to catch companies violating the law during the hiring process, so he can threaten a class-action lawsuit and demand a settlement. Documents show Groshek has used the tactic to extract at least $230,000 in legal settlements from businesses across the country and that he has threatened to sue at least 46 companies.

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No Background Check on Ex-city Contractor Charged in $43,000 Theft

David Leonard had served two jail sentences before being hired as the city’s parks manager last year, but in accordance with its usual practice regarding the hiring of contractors, the city hadn’t checked his background. Leonard is now the subject of a police probe in which he is charged with stealing $43,000 from the city’s Belleville Improvement Society, a nonprofit that oversees the city’s Atkinson Common park. After committing those alleged thefts, Leonard bid on — and won — a job to maintain Newburyport’s parks. He was fired earlier this year, when the city discovered he was being investigated for the Belleville thefts. According to Mayor Donna Holaday, his criminal record was not checked because Leonard was a contractor and not a city employee, he was not subjected to a Criminal Offender Record Information check. Holaday said there was never an issue with Leonard’s work until February, when the city learned he inappropriately failed to pay a subcontractor.

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EU Data Transfers to the U.S.: Considering Your Options after Privacy Shield

With the recent approval of the EU-US Privacy Shield framework and the ability to start filing online registrations on 1 August, many companies have questions about the advantages and disadvantages of Privacy Shield as compared to other cross-border transfer mechanisms to cover trans-Atlantic data flows.
Hogan Lovells answers your questions in their publication International Data Transfers – Considering your options, a high-level analysis of the EU cross-border transfer options for companies—including the EU Standard Contractual Clauses, Intra-Group Agreements and other ad-hoc contracts, Binding Corporate Rules, Privacy Shield, and Consent—and the pros and cons of choosing each one.
Privacy Shield is another option on a menu of choices for EU entities looking to transfer personal data to the United States, and US companies looking to demonstrate their reliability to EU organisations.

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To download International Data Transfers: Considering your options, click here.

University of Chicago Study Suggest that Ban-The-Box Has Unintended Consequences

Recently, many cities and states have passed “Ban-the-Box” (BTB) policies, which restrict employers from askingabout applicants’ criminal histories on job application forms. BTB is meant toopen doors to employment for people with criminal records and is oftenpresented as a means of reducing unemployment among black men, who have recordsat disproportionate rates. One concern is that depriving employers ofindividual criminal record information before the interview stage could leadthem to statistically discriminate on the basis of race or othercharacteristics like education or employment history. We investigate BTB’seffects on discrimination in initial employment decisions as well as theeffects of race and criminal records on employer callback rates.

Source: University of Chicago

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Trends in the “Ban the Box” Movement: Recent Developments in City Ordinances

As cities across the nation adopt “ban the box” legislation that regulates private employers’ ability to inquire into applicants’ and employees’ criminal histories, employers face a nuanced gauntlet of compliance issues. Because of the current wave of ban the box ordinances is likely to continue, employers should continue to evaluate their pre-employment and hiring practices and make necessary adjustments. Specifically, affected employers should review their employment applications, advertisements, and postings to ensure that any questions regarding an applicant’s criminal history are legally compliant for each cities and municipalities. Affected employers should also make sure all hiring/recruiting managers are apprised of the new ordinance requirements through training and revision of policies.

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Portland’s Ban-the-Box Law Takes Effect, Administrative Rules Provide Clarity

Portland, Oregon’s ban-the-box law, the Removing Barriers to Employment Ordinance, took effect on July 1, 2016. The ordinance prohibits most Portland employers from asking about an applicant’s criminal history or conducting a background check on an applicant until after a conditional offer of employment has been made. Late last month, the Portland City Attorney’s Office published administrative rules and documents related to the ban-the-box ordinance. The newly released rules, which by their terms are to be “liberally construed,” provide insight into how the city and the commissioner of Oregon’s Bureau of Labor and Industries (BOLI) will enforce this new law. The Portland ban-the-box law and ban-the-box laws in other jurisdictions, including all federal and state background check requirements, are summarized in Ogletree Deakins’ O-D Comply: Background Checks and O-D Comply: Employment Applications subscription materials, which are updated and provided to O-D Comply subscribers as the law changes.

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Louisiana Legislature Passes New Law Dealing with Employment of Sex Offenders

The Louisiana Legislature has passed a bill that based on the belief that sex offenders, sexually violent predators, and child predators pose a high risk of engaging in sex offenses and crimes against minors even after being released from incarceration. Two recent amendments to the laws regarding sex offenders, sexually violent predators, and child predators impact certain employers in Louisiana will go into effect.

It is now unlawful for a registered sex offender to work as a door-to-door salesperson, operate any bus, taxicab, or limousine for hire, engage in employment as a service worker who goes into residence to provide any type of service or operates any carnival or amusement ride.

If an individual is required to maintain registration as a sex offender under Louisiana law and is found to engage in any of the above type of work, that person (as opposed to the employing entity) shall be fined up to $10,000 and imprisoned for at least five years, though no more than ten years, at hard labor.

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Serial FCRA Plaintiff Falls Short

After a battle of motions between the parties, a Wisconsin federal judge dismissed a proposed class action for alleged violations under the FCRA against Cory Groshek. Why is this important? Well, some of you may be familiar with Groshek as he is a noted (some may say serial) plaintiff who has filed multiple lawsuits and/or sent demand letters to employers alleging violations of the FCRA. Groshek’s master plan was to apply for employment and get to the point where the hiring entity would provide him with the FCRA required disclosure and authorization as part of the background check/investigation. From there, the alleged FCRA violations began either in the form of a lawsuit or a demand letter. In one such case, the judge put the brakes on this case noting that nowhere in plaintiff’s complaint did he allege any concrete harm suffered as a result of the alleged violation.

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Racial Profiling in Hiring: A Critique of New “Ban the Box” Studies

Two recent studies claim that “ban the box” policies enacted around the country detrimentally affect the employment of young men of color who do not have a conviction record. The nation cannot afford to turn back the clock on a decade of reform that has created significant job opportunities for people with records. Review of the studies leads to these top-line conclusions: (1) The core problem raised by the studies is not ban-the-box but entrenched racism in the hiring process, which manifests as racial profiling of African Americans as “criminals.” (2) Ban-the-box is working, both by increasing employment opportunities for people with records and by changing employer attitudes toward hiring people with records. (3) When closely scrutinized, the new studies do not support the conclusion that ban-the-box policies are responsible for the depressed hiring of African Americans. (4) The studies highlight the need for a more robust policy response to both boost job opportunities for people with records and tackle race discrimination in the hiring process—not a repeal of ban-the-box laws.

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Benefit of Early Privacy Shield Adoption

On August 1, 2016 the U.S. Department of Commerce (DOC) started accepting self-certifications for compliance with the Privacy Shield Principles. A number of companies have already started the process to self-certify with the DOC to take advantage of the grace period offered to early adopters of the Principles to get contracts with third parties updated. If a company self-certifies to Privacy Shield within the first two months of the DOC accepting certifications (August 1 – September 30), those companies will be given an additional nine (9) months to get their contracts with third parties updated to meet Privacy Shield requirements. During that time, the Notice and Choice Principles apply to transfers to third parties. The grace period only applies to the Accountability for Onward Transfer Principle. The company needs to be in full compliance with the remaining Principles to self-certify.

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Privacy Shield Certifications Begin Trickling in

Although several companies say they have self-certified under the Privacy Shield framework, the U.S. Department of Commerce did not immediately list their compliance. The U.S. Department of Commerce is not just rubber-stamping applications to join the new Privacy Shield data protection program: 24 hours after companies began certifying their compliance, the administration's website still listed no approvals. Microsoft was among the first businesses to certify that it complied with the new rules for transferring European Union citizens' personal information to the U.S. when the Commerce Department's International Trade Administration began accepting applications. The company isn't waiting for official approval to begin applying the new rules, he said. "Going forward, any data which we will transfer from Europe to the U.S. will be protected by the Privacy Shield’s safeguards."

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Tompkins County Moves to 'Ban the Box'

Tompkins County legislators unanimously voted to "ban the box," joining a growing number of employers removing the criminal conviction question from job applications. Cornell University also moved to ban the box. Removing the box from applications does not mean employers can never inquire about criminal history, but it leaves that for later in the process, usually after a conditional offer has been extended. The policy also does not apply to all positions for both the county and Cornell. Tompkins County Legislator Jim Dennis, D-Ulysses, said when it comes to finding jobs, some people are being excluded. "It’s pretty clear to me from being in local government for better than 20 years, that there are some people who are being excluded from the process and they don’t necessarily need to be. They made a mistake, they paid their dues and they could be employable people in a lot of agencies," Dennis said. The box will be removed from Tompkins County applications as soon as the county's personnel department can implement the changes

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LA Schools Deny Job-Seekers Second Chance

Los Angeles Unified School District illegally rejects job-seekers who have expunged misdemeanor records, two members of the civil rights group All Of Us or None say in a lawsuit against the district. All Of Us or None, founded in 2003, promotes the civil rights of people who have been convicted of a crime, including help in employment and legislative advocacy. It sued LAUSD, its Superintendent Michelle King and the top officials in its Personnel Commission and Human Resources Division in Superior Court. California Labor Code states that employers cannot use convictions that have been judicially dismissed or ordered sealed as a factor in determining whether to hire a job candidate, according to the complaint. Both plaintiffs seek to clarify the scope of protection the state offers people who have expunged their records and are looking for employment.

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Criminal Histories are no Longer an Automatic Bar to Employment in Illinois Schools

Effective July 29, 2016, HB 4360 revised Illinois law to eliminate what was otherwise considered a lifetime ban on employment for those individuals seeking work in schools who had been convicted of certain non-violent drug offenses. Specifically, the revised law allows individuals convicted of certain drug offenses to regain the right to apply for jobs in Illinois schools after a period of seven years following the end of the sentence for the offense. Advocates of this amendment anticipate that the revised statute will increase job opportunities for people with criminal records who have paid their debt to society and are seeking gainful employment.

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Governor Baker Signs Legislation Supporting Innovative Transportation Options

Governor Charlie Baker signed bipartisan legislation creating a modern statewide regulatory framework for transportation network companies (TNCs), prioritizing public safety and recognizing Massachusetts’ role as a leader in transportation innovation. The legislation, An Act regulating transportation network companies (H. 4570includes support for transparent pricing, properly marked and inspected vehicles, clear insurance standards, authorization of service at Boston Logan International Airport and the Boston Convention and Exhibition Center (BCEC), and the strongest state background check requirements in the nation. “I am pleased to sign bipartisan legislation to ensure Massachusetts remains a leader for innovative new technologies, with safe and diverse transportation options and opportunities for hardworking individuals to earn a living, said Governor Charlie Baker.

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Families of Charleston Shooting Victims sue FBI Over Background-check Error

The families of victims killed in last year’s shooting at the Emanuel AME Church in Charleston, S.C., are suing the FBI over an error during a background check that allowed the alleged shooter to buy his gun. The lawsuit comes a year after the mass shooting that sent shock waves through the country. Dylann Roof is charged with opening fire and killing nine black parishioners during a prayer meeting at the historic African American church. In the days after the shooting, FBI Director James B. Comey said in a remarkable disclosure that Roof shouldn’t have been able to buy the gun he allegedly used. Authorities have said that a clerk’s mistake in how Roof’s arrest was listed prevented the FBI examiner for his background check from seeing it. Roof’s federal trial is scheduled to begin in November; his state trial is also set for later this year but is likely to be rescheduled. He faces the death penalty in both cases

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Rhode Island Passes Ridesharing Bill with Stipulation for Use of NAPBS Accredited Firms

The Governor signed Senate Bill 2864 on July 6, 2016. The Bill amended the General Laws entitled "Public Utilities and Carriers" by adding the chapter: 3 Chapter 14.2 4 Transportation Network Company (TNC) Services 5 39-14.2-1. The amendment states that “No individual shall provide TNC services or transport TNC riders in a personal vehicle until the individual shall have first submitted to required periodic background checks conducted through the TNC. If a third party is used to conduct the required background checks the third party must be accredited by the National Association of Professional Background Screeners.

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Courthouse Shooter was School Volunteer, Prompts Changes for Background Checks

The 13 Watchdog team is uncovering troublesome ties between the Berrien County Courthouse shooter and a nearby elementary school. It has been confirmed that Larry Gordon was a classroom volunteer at South Elementary in Watervliet for over a year, despite a long criminal record. "We do background checks, unfortunately the background check I saw I didn't see any violent crimes," said Kevin Schooley, superintendent of the Watervliet Public Schools. The Watchdog team learned Gordon had a criminal history dating back to the 90's, including two federal convictions for possession of a pipe bomb and a felony larceny conviction in 2013. The school never checked Gordon's record for federal crimes. The principal says that's because employees get fingerprinted, but not volunteers. Schooley says he's focused on making improvements to school safety.

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Background Screening Class Certified in Obsolete Information Case

On July 26, a Northern District of California judge certified a class of applicants who claimed that S2Verify, a background check company, included obsolete criminal information on their background reports in violation of the FCRA. In certifying the class, the Court found that the alleged harm was sufficient under the U.S. Supreme Court’s ruling in Spokeo. The Court certified the class finding that the lawsuit met the numerosity, commonality, typicality, and adequacy requirements for granting class certification. The Court also ruled that the claim asserted by Plaintiff satisfied the concreteness test for purposes of standing since he was able to demonstrate that S2Verify “sent restricted information about plaintiff into the world and as such caused injury to plaintiff’s privacy interest.”

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USA: FTC's Data Security Expectations "Abundantly Clear" Following LabMD Decision

The Federal Trade Commission (FTC) issued its opinion and final order against LabMD, Inc. which concluded that LabMD's data security practices constituted an unfair act or practice within the meaning of Section 5 of the FTC Act 1914. The Decision consequently reverses the earlier Administrative Law Judge's (the ALJ) ruling, which held that the FTC failed to prove that LabMD did not employ 'reasonable and appropriate' data security measures, which 'caused, or [was] likely to cause, substantial injury to consumers,' as alleged. "The Decision is another example of the FTC's intent to exercise its authority very broadly, in terms of the types of organisations that fall within its scope, the personal data covered, and the safeguards that must be in place to protect the data,” said Joan Antokol, Partner at Park Legal LLC.

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Illegal in Massachusetts: Asking Your Salary in a Job Interview

In a groundbreaking effort to close the wage gap between men and women, Massachusetts has become the first state to bar employers from asking about applicants’ salaries before offering them a job. The new law will require hiring managers to state a compensation figure upfront — based on what an applicant’s worth is to the company, rather than on what he or she made in a previous position. The bipartisan legislation is being pushed as a model for other states, as the issue of men historically out-earning women who do the same job has leapt onto the national political scene. Nationally, there have been repeated efforts to strengthen equal pay laws — which are already on the books but tend to lack teeth — but none have succeeded so far. Massachusetts joins at least 12 other states that already require companies to let employees compare notes about how much they are paid.

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Indiana Passes New Legislation Restricting Criminal History Information Reported in Background Checks

The EEOC's April 25, 2012 updated enforcement guidance on the use of arrest and conviction records by employers has generated renewed and substantial interest in the controversial subject of criminal background checks in the context of Title VII of the Civil Rights Act of 1964. Although it is important for employers to review the EEOC's updated guidance, employers also need to be mindful of the increasing number of related state laws. The latest of these laws is Indiana House Bill 1033, which, starting July 1, 2012, will, in part: (1) prohibit certain pre-employment inquiries; (2) restrict the types of criminal history information that employers and background report providers (known as "consumer reporting agencies" or CRAs) can obtain from Indiana state court clerks; and (3) restrict the types of criminal history information that CRAs can report to employers in background reports. The apparent purpose of the new law is to limit the universe of Indiana criminal record information available to employers among other entities.

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Spokeo Based Motion to Dismiss Filed in Pennsylvania Federal Court

In Long v. Southeastern Pennsylvania Transportation, the named plaintiffs applied for positions as bus operators with the Southeastern Pennsylvania Transportation Authority (SEPTA). SEPTA allegedly extended each of the plaintiffs a conditional offer of employment, which was contingent upon a background check. In each instance, the plaintiffs disclosed the existence of a drug conviction to SEPTA. SEPTA then obtained consumer reports on the plaintiffs, which demonstrated that the plaintiffs did in fact have one or more felony drug convictions. The plaintiffs contend that their conditional offers of employment were revoked as a result of their criminal history. The plaintiffs filed their class action complaint against SEPTA in April in the U.S. District Court for the Eastern District of Pennsylvania.

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Supplemental Briefs Submitted to the Ninth Circuit for Decision in Spokeo Case

After the Supreme Court vacated and remanded the Ninth Circuit’s decision in Spokeo, Inc. v. Robins, the parties again appeared before the lower court, arguing over whether a purely technical violation of the FCRA is sufficient to satisfy the concreteness requirement for Article III standing. The Supreme Court issued its decision in the Spokeo matter, holding that while the Ninth Circuit had considered whether Robins’ harm was particularized, the lower court had failed to consider whether the “invasion of a legally protected interest” was “concrete.” The high court instructed the Ninth Circuit to consider “whether the particular procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness requirement.” In its supplemental brief, Spokeo argued that “[n]either the statutory violations alleged here nor the factual allegations of the complaint demonstrate that Robins suffered the required concrete harm or faced a ‘certainly impending’ risk of harm.”

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