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Verifile International Newsletter Issue #21

31 Jan 2017

Welcome to our January edition of the International Newsletter 2017 which we hope you find helpful in keeping up to date.

INTERNATIONAL PRODUCT CHANGES

Please find below an update for the International checks that have had a change of the process, requirements or forms. If you would like us to send you the current documentation for any of the listed checks please contact us by emailing to service@verifile.co.uk

MEXICO
Credit Check
This search is no longer available. However, please note that we can still offer Civil litigation search.

LATVIA
Criminal Check
The application form has changed.

SLOVAKIA
Extended Credit Check
Both forms, Power of Attorney and Slovakia Tax Authority Release Letter, have now changed.

In this issue of the International Newsletter:

WORLDWIDE

- Highest Talent Shortage Reported In 2016

- Peoplescout Worldwide Unemployment Snapshot

AFRICA & MIDDLE EAST  
JORDAN

- Jordan Businesses Should Hire Data Protection Officer

ASIA PACIFIC

- Free Movement of Labour Is Coming. Are You Ready?

- The APEC Cross-Border Privacy Rules: Advancing Privacy and Digital Trade In Asia

- U.S. And APEC Leaders Reaffirm Implementation of The APEC CBPR

- Declaration Signed for Privacy Research And Education

AUSTRALIA

- New Substance Abuse Trends Making Their Way Into The Workplace

CHINA

- New Data Privacy Obligations For Chinese Employers

INDIA

- Background Checks on Employees in India

INDONESIA

- Indonesian Electronic Information and Transactions Law Amended

SINGAPORE

- Redundancy Figures Reach Seven-Year High

THAILAND

- Fake Degree Providers Prove Immortal

EUROPE

- Background Screeners, DPOs and Transfers of Data From the EU to the US

- The WhatsApp Wake Up Call for Companies Doing Business In The EU

- Identifying the Data Protection Officer’s Role

- EU-US Reach Data Transfer Agreement

- The Data Export’s “White List”

FRANCE

- Class Action Allowed In France For Data Breaches

HUNGARY

- Employee Photos Receive Protection

IRELAND

- Ireland Steps Up Data Protection

LUXEMBOURG

- New Changes to Applicant Background Checks

PORTUGAL

- Criminal Records Now Available Online

ROMANIA

- Romania To Adopt General Data Protection

SPAIN

- New Spanish Data Protection Law in 2017?

UNITED KINGDOM

- HR Leaders Need Data Protection Education

- Firms Who Hire Ex-Cons Should Be Given Tax Breaks, Common Committee Says

- Hermes Says Sex Attack Delivery Driver Lied About Criminal Past to Get Job

- Jobs Set to Grow: CBI Data is Optimistic For 2017

NORTH AMERICA  
CANADA

- Get Ready to Give Up Your Online Privacy To Score The Perfect Rental

MEXICO

- Mexico Economy Posts Fastest Quarterly Growth in Two Years

RUSSIA & EASTERN BLOC

- Russia Blocks Linkedin As A Result Of Data Localisation Requirement

SOUTH AMERICA  
ARGENTINA

- Argentina Regulates Personal Data Transfers

COSTA RICA

- Costa Rica: Data Protection Amendments Reflect Country's Digital Maturity

UNITED STATES

- City of Los Angeles Adopts Fair Chance Hiring Ordinance

- Philadelphia to Prohibit Inquiries about Applicant’s Wage History

- California Law Restricts Employers From asking About Juvenile Criminal History

- First Settlement Reached Under Illinois’ Biometric Information Privacy Act

- Philadelphia Set to Become First City to Ban Employers from Asking Job Applicants about Prior Earnings

- Rite Aid Seeks Dismissal of Job Applicant Background Check Class Action

- The Opioid Addiction Epidemic Grows in the Workplace

- What Does Florida’s New Medical Marijuana Law Mean for Employers

- FMCSA Finalizes Rule on National Drug and Alcohol Testing Clearinghouse

- D.C. Bill Protects Job applicants’ Credit Histories

- E-Verify and Disposal of Historic Records

- Staffing Company Escapes Potential $1.4 Million Form 1-9 Penalty

 

World wide news

Highest Talent Shortage Reported in 2016

Employers across the globe are facing the most acute talent shortage since the recession, according to a Talent Shortage Survey. Of the employers surveyed, 40% are experiencing difficulties filling roles: the hardest jobs to fill are Skilled Trade Workers, Sales Representatives, Engineers, Technicians and Drivers. Across the EMEA, Asia Pacific, and the Americas, IT Staff re-enters the top 10 ranking for the first time, and is the 10th hardest job to fill in 2016. According to the survey, as skills needs change rapidly, employers are looking inside their organizations for solutions, with more than half choosing to develop and train their own people.

Read more

Peoplescout Worldwide Unemployment Snapshot

 

A listing of global countries unemployment rates.

Read more

Africa Middle East

Jordan

Jordan Businesses should Hire Data Protection Officer

Under Jordan’s new data protection law, businesses will be liable for an employee’s personal data, and thus, should hire a data protection officer to comply. Safwan Moubaydeen and Lara Saraireh, Partner and Senior Associate at Dentons, told DataGuidance, “Businesses must examine their processes and procedures to ensure compliance. Accountability will need to be determined within businesses, and employees need to be trained to ensure they have the ability and understanding to comply...” In addition, under Article 9 of the Draft Law, there is a requirement to appoint a data protection officer, who will be responsible for creating and controlling data processing procedures as well as receiving and responding to complaints.

Read more

Asia Pacific

Free Movement of Labour is Coming. Are You Ready?

The ASEAN Economic Community (AEC) is decidedly undeterred by the turmoil in the European Union with Britain’s exit. The 10 members of the Association of Southeast Asian Nations (ASEAN) bloc may not have received major fanfare, but it capped 12 years of negotiations to forge a labour movement zone in southeast Asia.

Among the legalese lies a series of agreements designed to make it easier for employers in one ASEAN country to hire the citizens of another. These include mutual 'recognition of qualification' deals - covering professions such as accountants, doctors, engineers, nurses and architects - which ensure credentials are valid across the bloc, and an agreement on 'movement of natural persons', which makes it easier to issue temporary visas or move individuals within countries. The aim is clear: in its ASEAN Community Vision 2025, the bloc agreed to strive for "a more seamless movement of investment, skilled labour, business persons and capital", which will further erode barriers to the movement of labour.

Read more

The APEC Cross-Border Privacy Rules: Advancing Privacy and Digital Trade in Asia

What does the rest of the world beyond the EU and Europe believe about Privacy Shield? Part of the answer lies in the APEC Cross-Border Privacy Rules system (CBPRs), a mechanism to raise standards for the protection of personal information while ensuring that data can flow freely between the 21 members of APEC, which together represent 54 percent of the world economy. The APEC Cross-Border Privacy Rules system builds consumer, business and regulator trust in the data flows that businesses in the United States and across the Asia-Pacific region rely on by providing voluntary but enforceable standards for privacy protection.

Read more

U.S. and APEC Leaders Reaffirm Implementation of the APEC CBPR

On November 20, 2016, the heads of state of the 21 member economies of the Asia-Pacific Economic Cooperation (APEC) forum reaffirmed the APEC Cross-Border Privacy Rules (CBPR) system. The APEC CBPR system was initially endorsed by the APEC economies in the 2011 Leaders’ Declaration. The current participants are the United States, Mexico, Canada and Japan. The system is a regional, multilateral, cross-border data transfer mechanism and enforceable privacy code of conduct developed for businesses by the 21 APEC member economies. The CBPRs implement the nine APEC Privacy Principles set forth in the APEC Privacy Framework.

Read more

Declaration Signed for Privacy Research and Education

The Office of the Privacy Commissioner for Personal Data, Hong Kong (PCPD), the Korea Internet & Security Agency and Barun ICT Research Center, in addition to privacy experts and academia from the Mainland China, South Korea and Japan, signed the Asia Privacy Bridge Forum Joint Declaration 2016 to strengthen privacy research, education and policy cooperation in the Asian region. The Asia Privacy Bridge Forum was set up to identify steps for bridging the gaps among Asian economies about their approaches to data privacy protection. The joint declaration includes collaboration on privacy research programs and strengthening of privacy research programs, among other initiatives.

Read more

Australia

New Substance Abuse Trends Making their Way into the Workplace

Workplace drug testing company Safework Laboratories has found the first positive results for NBOMe (N-Bomb) in Western Australia and Queensland. The drug, which is designed to produce similar hallucinogenic effects as LSD, is extremely potent and can cause violent or frightening hallucinations, major cardiac symptoms, nausea and vomiting, according to Andrew Leibie, Safework’s National Marketing Director and forensic toxicologist. The components of the drug could not be detected by normal workplace drug tests, but can be traced using more advanced testing. What’s more, research by the National Drug Research Institute at Curtin University has found anecdotal evidence that professionals in Australia and overseas are “microdosing” before heading to work. The act of taking a fraction of the dose recreational drug users take to get high reportedly has caused individuals to experience improved cognition and creativity, and better attentiveness.

Read more

China

New Data Privacy Obligations for Chinese Employers

Starting June 1, 2017, Chinese employers will be required to follow more directives with regards to safeguarding employee’s personal information. The Cyber Security Law (CSL) was originally passed to address significant gaps in protections around personal data and security in China. New directives will now include data privacy protection, and will impose obligations on companies who handle personal information electronically. The CSL defines personal information as data collected, stored or transmitted electronically, to include a citizen’s name, date of birth, ID card number, personal biometric information, address and telephone number

Read more

India

Background Checks on Employees in India

After a rise in incidents of falsified profiles, Indian companies have started to include background checks as a part of the recruitment and screening process. The check differs across various sectors and organizations in India, but includes verifying educational qualifications and employment records; contacting past employers; obtaining criminal records; and performing identity checks. Article 21 of the Constitution of India guarantees an individual’s right to live with liberty and dignity, so employers should be sensitive to the data used for background checks, as well as the means to obtaining such data.

Read more

Indonesia

Indonesian Electronic Information and Transactions Law Amended

In an effort to accommodate recent developments in the electronic information and transactions (EIT) sector in Indonesia, Law No. 19 of 2016 on the Amendment to Law No. 11 of 2008 on Electronic Information and Transactions took effect in November. The Amendment clarifies the definition of an Electronic System Provider (ESP); provides an element of privacy protection; and authorizes the Indonesian Government to terminate access, or order an ESP to terminate access, to electronic information or documents with content that violates applicable laws and regulations. The Amendment also includes definitions of “distributing,” “transmitting,” and “making accessible” -- three elements that are relevant to prohibitions against the sharing of any electronic information or documents that contain immoral, gambling, humiliation, extortion or threatening content. In addition, the Amendment has reduced the criminal sanctions imposed for several EIT violations, including those documents containing insult, defamation, threats of violence or frightening information.

Read more

Singapore

Redundancy Figures Reach Seven-Year High

According to the Ministry of Manpower’s (MOM) report on labour market released in December, the number of workers made redundant in the first nine months of this year is the highest it has been since the 2009 global financial crisis. A total of 13,730 workers were laid off from January through September, the highest since 2009. Third quarter figures revealed 4,220 workers were made redundant, including professionals, managers, executives and technicians. MOM stated that they will continue to step up help for those affected by the economic situation to seek job opportunities. MOM did, however, report a rise in re-entry rates, as more residents who were made redundant in the second quarter were able to find jobs.

Read more

Thailand

Fake Degree Providers Prove Immortal

The Education Ministry has asked the Ministry of Digital Economy and Society to track down online sellers of forged educational certificates, but admitted that the illicit business continues endlessly in the country. According to Chaipreuk Sereerak, permanent secretary for education, received reports that forged degree certificates, ranging in cost from 2,500 and 7,000 baht, were being sold on a Facebook page with a Thai name meaning “cheap certificates for all educational levels.” The page encouraged “sharing” and “liking” for the chance to win a free bachelor’s degree. Those who use such certificates would be liable to a jail term of up to five years and possible fines up to 10,000 baht.

Read more

Europe

Background Screeners, DPOs and Transfers of Data from the EU to the US

Background screening companies that plan to conduct a background investigation or check on an individual who lives, or previously lived and worked, in the European Union (EU) should consider the General Data Protection Regulation (GDPR) before transferring data to the United States from the EU. The GDPR requires the designation of a Data Protection Officer (DPO) who can be an internal employee or can be hired as an outside consultant to work with a controller or processor. Failure to do so could result in administrative fines of up to 10 million Euros or up to 2% of the “total worldwide annual turnover of the preceding financial year.”

Read more

W29 Releases Guidance on DPOs, Data Portability, One-Stop Shop

The European Union’s (EU) Article Working Party recently revealed a number of General Data Protection Regulation (GDPR) application guidance documents. The mandatory Data Protection Officer (DPO) role can be confusing to organizations who question the terms “core activities” and “large scale.” Guidance recommends those in doubt should err on the side of appointing a DPO. This individual should be a professional who is qualified to determine the organization’s compliance with national and European data protection laws and practices, including an in-depth understanding of the GDPR. The new data portability law under Article 20 of the GDPR allows data subjects to receive from any controller, in a machine-readable format, the personal data they provided “knowingly and actively” to the controller and any personal data generated by their activity. The WP29’s guidance for establishing a lead data protection authority to lead the “one-stop shop” mechanism details cross-border processing and illustrates sample scenarios for choosing a DPA. And, finally, details on the EU-U.S. Privacy Shield include further definition of the framework for transferring personal data to the United States.

Read more

Identifying the Data Protection Officer's Role

The Centre for Information Policy Leadership (CIPL) has issued a white paper on Ensuring the Effectiveness and Strategic Role of the Data Protection Officer under the General Data Protection Regulation. The White Paper sets forth guidance and recommendations concerning the DPO’s interpretation and implementation of the GDPR’s provisions. The White Paper encourages a flexible and pragmatic implementation of the GDPR’s DPO provisions to ensure that they work for organizations of all sizes and types, from large multinational organizations to SMEs, start-ups, NGOs and public authorities. It identifies challenges posed by specific DPO requirements and proposes sensible interpretations and “best practices.”

Read more

EU-US Reach Data Transfer Agreement

EU-US data protection framework, known as the “Umbrella Agreement” has been as backed by a large majority in a European Civil Liberties Committee. The deal will ensure data protection standards for data exchanged by police and law enforcement across the Atlantic. The Umbrella Agreement covers the transfer of all personal data, such as names, addresses or criminal records, exchanged between the EU and US for the prevention, detection, investigation and prosecution of criminal offenses, including terrorism. The agreement ensures that citizens on both sides of the Atlantic will have the right to be informed of data security breaches, have inaccurate information corrected and seek judicial redress at court.

Read more

The Data Export's "White List"

The European Commission unveiled two draft Commission Implementing Decisions that propose amendments to whether a third country provides adequate safeguards to protect personal data. Countries deemed to be adequate to protect consumer are added to the Commission’s “white list,” thus data transfers can be made from the EEA to that country without requiring further safeguards. The Commission’s move to amend the decisions follows the ruling of the Schrems case, where activist Max Schrems has argued that the EU’s “Privacy Shield” does not safely protect Europeans from U.S. mass surveillance.

Read more

France

Class Action Allowed in France for Data Breaches

Citizens in France can now take class action when their data protection has been violated. The new Act allows for class actions for discriminations, health, environment and data protection. The Act has a limited list of organizations that will be able to take actions on behalf of individuals, provided that individuals suffer damage as a consequence of a data protection breach. Under the Act, businesses will now be scrutinized on their data protection activities and then sued before courts, especially by consumer associations and trade unions. Overall, the new Act will include entail a significant increase in reputational risk for companies.

Read more

Hungary

Employee Photos Receive Protection

Hungary’s Authority for Data Protection and Freedom of Information issued new guidance on the lawful use of employee photos. An employee photo can only be taken or processed lawfully if there is a specific underlying purpose, for example, as needed for a workplace ID card. For group or event photos, it may not be necessary to obtain consent for the publication of photos on a website if the photos are taken of employees who attend an open, work-related event and the “image is not unique”. Employers should investigate whether a photo qualifies as a “crowd shot”. If not, then consent from the relevant person must be obtained before publishing.

Read more

Ireland

Ireland Steps Up Data Protection

Ireland is set to become a key country in Europe in protecting the data of its citizens. Vera Jourová, European Commissioner for Justice, Consumers and Gender Equality noted that the Irish Data Protection Authority will rigorously ensure that EU privacy directives will be enforced within the country. The regulations will mean that companies who are accessing customer’s data will be required to receive express permission to use that data for other purposes, in addition to informing consumers about their individual rights via awareness campaigns.

Read more

Luxembourg

New Changes to Applicant Background Checks

Beginning February 1, 2017, employers in Luxembourg can request an applicant’s criminal record certificate during the recruitment process or the course of an employment relationship. Under new legislation, an individual must be informed of the request in writing, and the criminal record certificate cannot be kept for more than one month after an employment contract is signed. If the person is not hired, it must be destroyed immediately. In addition, during the course of an employment relationship, employers can request Section 3 of an employee’s criminal record certificate if the employee is transferred to a different position and the specific job requirements require a criminal record check.

Read more

Portugal

Criminal Records Now Available Online

It is now possible for Portuguese citizens to consult and request their criminal records or clearance via the Internet. Records are now available online through the Online Criminal Register page and also to Portuguese citizens living abroad as long as they have a bank account in Portugal and home-banking. The document costs five euros and will be made available following payment via an ATM machine.

Read more

Romania

Romania to Adopt General Data Protection

Romania will adopt the EU’s General Data Protection Regulation in May 2018, meaning companies will be required to have integrated personal data storage and processing information systems. Failure to comply with the new regulation will result in large fines. However, Secretary of State Cristian Cucu added that the new regulation is not a directive, “which means that there is no requirement to transpose it into national legislation.” He also described himself as a supporter of the idea of IT specialization and that in this regard Romania needs to find its position in the European Union.

Read more

Spain

New Spanish Data Protection Law in 2017?

The Head of the Spanish Data Protection Authority (AEPD) recently announced in the VI IAB Congress that a draft bill to reform the current Spanish Data Protection Act (LOPD) will be submitted in February. The initiative aims to bring the Spanish data protection regime up to the General Data Protection Regulation (GDPR). It is anticipated that the new law will cover most of the GDPR derogations and provide a conservative interpretation of GDPR, where possible, in line with the current application of the LOPD and case law.

Read more

United Kingdom 2

HR Leaders Need Data Protection Education

The General Data Protection Regulation (GDPR), which will harmonize data protection procedures across the European Union in May 2018, will have a direct effect in the UK, and HR professionals will need to undertake an audit of their procedures and policies before the legislation is implemented. Non-compliance will be expensive. HR teams in particular will need to communicate data protection policies, including pre-employment; how data is processed; how open access requests are handled; data breach responses; and how IT systems are effectively storing and deleting data as necessary.

Read more

Firms who Hire Ex-Cons should be given Tax Breaks, Commons Committee says

Ministers recently were urged to cut National Insurance contributions for firms that “actively” employ former convicts as part of efforts to tackle re-offending rates. The Commons Work and Pensions Committee outlined a plan that supports the statistic that released prisoners who find jobs are far less likely to return to lives of crime. The Committee encouraged moves to remove the criminal record disclosure section on initial job applications for most civil service roles and recommended that the Government extend “ban the box” to all public bodies. Most would agree that employment support for offenders begins in prison with active work opportunities through Release on Temporary License. The Government supports the importance of a smooth transition and introduced the Through the Gate provision in 2015. Provided by Community Rehabilitation Companies, services of the provision include support finding employment, securing accommodation, finance and debt advice, as well as help for victims of domestic abuse.

Full Report from House of Commons

Read more

Hermes says Sex Attack Delivery Driver Wasim Bhar Lied about Criminal Past to get Job

Delivery driver Wasim Bhar, 24, worked as a delivery driver for Hermes Parcelnet for just two days before sexually assaulting a customer in her home. The assailant lied to the company about his criminal past and has been sentenced to four years in jail, as well being ordered to register as a sexual offender for the rest of his life. Hermes is undertaking a full review of its service provider application process.

Read more

Jobs Set to Grow: CBI Data is Optimistic for 2017

The latest Employment Trends Survey released by CBI/Pertemps Network Group predicts that the United Kingdom’s labour market will see continued job growth in 2017, finding that four in ten firms will grow their workforce. And for the fourth year in a row, the survey has revealed that growth in permanent job opportunities will outstrip temporary recruitment. The survey, however, does demonstrate a greater concern about the UK’s future relationship with the European Union. Most companies have taken a positive approach to the concern and have even been able to provide increases in pay, while remaining committed to creating prosperity. Ultimately, companies that place inclusion and staff engagement in the forefront are more productive and able to retain their workforce, said Neil Carberry, CBI director for people and skills policy.

Read more

North America

Canada 2

Get Ready to Give Up Your Online Privacy to Score the Perfect Rental

In an effort to make life easier for first-time landlords and level the playing field for those at risk of discrimination, Canadian company Naborly Inc., a digital tenant screening solution, still provides a credit check, proof of employment, previous addresses and names, but also has the ability to compile 500 data points to produce a “tenant score” in about 15 minutes. The software combs social media and phone and criminal records for $29.99. Current landlords understand the reluctance of some to gather such sensitive information, but say the risk of property damage, eviction costs, unpaid rent and legal fees outweighs the nervousness to screen their possible tenants. One scan even uncovered a “father” who was running a brothel, claiming the women were his daughters. The information, one landlord argued, is only as ethical as the person armed with the results.

Read more

Mexico

Mexico Economy Posts Fastest Quarterly Growth in Two Years

Mexico's economy posted its fastest growth in more than two years. Gross domestic product grew by 1.0 percent in the third quarter compared with the prior quarter MXGDPQ=ECI, according to seasonally adjusted data from Mexico's statistics agency, in line with estimates in a Reuters poll. It was the fastest quarterly expansion since the second quarter of 2014.

Deputy Finance Minister Vanessa Rubio said the government expected the economy to grow between 2.0 and 2.6 percent in 2016, pointing to "solid" consumption despite weak factory production and lower oil output.

Read more

Russia and Eastern Bloc

Russia

Russia Blocks Linkedin as a Result of Data Localisation Requirement

In an unprecedented move, the Russian DPA, Roskomnadzor yesterday, 17 November, blocked access to the LinkedIn website in order to comply with a Moscow City Court ruling on 10 November. The court found that the company was in breach of the data localisation laws.

The data localisation provisions in the Russian law require websites to store personal data of Russian citizens on servers in Russia. The data localization requirement took effect in September 2015, but this aspect of the law has not been previously enforced.

Read more

South America

Argentina

Argentina Regulates Personal Data Transfers

The Argentina Data Protection Agency has issued DNPDP Disposition 60 – a new regulation on international transfers of personal data. The Regulation approves two model forms for the international transfer of data – one for use with transfers to a data controller and another for use with transfers to a data processor, for rendering services. The model is based partly on the EU model; if the data controller wishes to use a different model, the controller must file a request for approval with the DPA within 30 days. The Regulation also lists countries that are considered “adequate” for purposes of cross-border data transfers.

Read more

Costa Rica

Costa Rica: Data Protection Amendments Reflect Country's 'Digital Maturity'

Amendments to Executive Decree No. 37554-JP, which supplement Law No. 8968 on the Protection of Individuals with Regards to the Processing of Personal Data 2011 (“the Data Protection Act”), have introduced new definitions of database, consent, data transfer and other key concepts. According to Fabian Solis, Associate at Facio & Cañas, the Amendments should clarify issues that raised concerns in the public and private sectors of the Data Protection Act. The Amendments also simplify the procedures for database registration and clarify the role of financial institutions. The Government has been trying to bring Costa Rican law in line with international standards and has recognized that bigger changes are needed.

Read more

United States

LEGAL ISSUES

City of Los Angeles Adopts Fair Chance Hiring Ordinance

The city of Los Angeles has adopted the Fair Chance Initiative Ordinance (Ordinance), which aims to eliminate a barrier to employment for persons who have been convicted of crimes. The Ordinance, which becomes effective Jan. 22, applies to any private employer in Los Angeles or those doing business in the city that employs 10 or more employees. The term “applicant” is broadly defined as any individual who submits an application or other documentation for employment. The Ordinance, however, does not apply to employers that are required by law to obtain information regarding a conviction of an applicant or those that are prohibited from hiring an applicant that has been convicted of a crime. The Fair Chance Process gives an applicant the opportunity to provide information regarding the accuracy of their criminal history after a conditional offer has been made.

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Philadelphia to Prohibit Inquiries About Applicant’s Wage History

The Philadelphia Fair Practices Ordinance (Ordinance) is being amended to make it an unlawful employment practice for an employer or employment agency to inquire about various aspects of a prospective employee’s wage history. The city is the first to ban employers to do so. Enforced by the Philadelphia Commission on Human Relations, ignoring the laws under the Ordinance could result in substantial fines and criminal penalties.

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California Law Restricts Employers From Asking About Juvenile Criminal History

Effective Jan. 1, California employers will be restricted from asking about, seeking or using a California applicant or employee’s juvenile criminal history in the employment context. An amendment to California Labor Code 432.7, the law prohibits employers from asking an applicant to disclose information concerning or related to any criminal activity that took place when the individual was a juvenile and seeking, from any source, any record concerning or related to the person’s criminal history in his or her juvenile years. Under the current law, preexisting portions of the code section allow an employer to inquire into, seek and use certain convictions.

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First Settlement Reached Under Illinois’ Biometric Information Privacy Act

A Cook County Circuit Court in Chicago recently issued a final approval for a $1.5 million settlement between L.A. Tan Enterprises Inc. and a class of the franchise’s customers who claim it failed to properly handle their biometric information. This is the first settlement reached under the Biometric Information Privacy Act requiring companies to gain consent before collecting a person’s biometric data. The lawsuit claimed that L.A. Tan did not obtain written consent from customers to use data obtained through fingerprint technology, rather than key fob identification. The settlement states that L.A. Tan will use the $1.5 million to put a process in place to comply with the Illinois statute or destroy all biometric data and pay each individual a check of $125. Other similar suits include accusations that California companies used facial recognition software to collect biometric data.

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Philadelphia Set to Become First City to Ban Employers from Asking Job Applicants About Prior Earnings

In an effort to address the gender wage gap, many municipalities and states have introduced equal pay laws that prohibit employers from asking applicants about their salary history. Philadelphia soon will become the first city to adopt the “wage-gap” legislation. The bill, influenced by the passage of a state-wide wage-gap law in Massachusetts earlier this year, will amend the Philadelphia Fair Practices ordinance to prohibit employers from asking about an applicant’s wage history at any stage of the hiring process. Few exceptions apply, including an employer’s right to use wage history if an applicant knowingly and willingly disclosed the information or in the case where a federal, state or local law specifically authorizes the disclosure or verification for employment purposes.

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Rite Aid Seeks Dismissal of Job Applicant Background Check Class Action

Last month, Rite Aid filed a motion to dismiss a proposed Fair Credit Reporting Act (FCRA) class-action in the District Court for the Eastern District of Pennsylvania. The complaint states that the business violated the FCRA by failing to allow job applicants to challenge inaccurate or misleading reports after they were rejected for employment. Rite Aid, however, claims the case should be dismissed since the Plaintiff, Kyra Moore, already settled claims with the background screening company. Prior to applying for a position with Rite Aid, Moore was dismissed from her job at CVS when a loss prevention officer confronted her about missing store stock. When she applied for a job with Rite Aid, background screening was performed by Lexus Nexus, which revealed a statement signed by Moore, regarding the theft at CVS. A copy of that statement was not provided to the Plaintiff. Moore already has filed two class actions and an Equal Employment Opportunity Commission proceeding, claiming that Lexus Nexus acted as Rite Aid’s agent for purposes of the FCRA.

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DRUG SCREENING

The Opioid Addiction Epidemic Grows in the Workplace

It’s no secret that Americans – and their employers – have an opioid problem. The Washington Post recently shared that one-third of long-term users say they’re hooked on prescription opioids, a problem that is being addressed by the $1 billion 21st Century Cures Act. But what can employers do to address substance abuse in the workforce? The International Foundation of Employee Benefit Plans recently conducted a survey of U.S. and Canadian organizations on the topic of mental health and substance abuse. The study revealed that 67 percent of respondents believe that substance abuse has an impact on work performance. Vice President Julie Stich suggested that substance abuse is best dealt with in an Employee Assistance Program (EAP) that handles resources, referrals, counseling and education. Continue reading to learn how to welcome back an employee who has been on leave to deal with an admitted substance abuse problem.

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What Does Florida’s New Medical Marijuana Law Mean for Employers

In the November 2016 elections, four states approved their medical marijuana amendments, bringing the total to 28 states and the District of Columbia that allow comprehensive public medical marijuana programs. Florida employers have been left to wonder what to expect. Amendment 2 for the state now defines the term “debilitating medical condition” as part of the 2014 law that legalized a low-THC strain of marijuana for terminally ill patients and those with chronic ailments. Most importantly, the law does not require any accommodation of on-site medical use of marijuana. This, however, is a big concern for employers who want to know how this will affect the duty to provide a reasonable accommodation under the Americans with Disabilities Act (ADA). Florida employers should take time to learn what the law says about termination for medical marijuana use, requirements to accommodate off-duty use, and drug testing and zero tolerance policies.

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FMCSA Finalizes Rule on National Drug and Alcohol Testing Clearinghouse

The U.S. Department of Transportation’s (DOT) Federal Motor Carrier Safety Administration (FMCSA) recently announced a final rule establishing a national drug and alcohol clearinghouse database for commercial motor vehicle drivers. The rule, which will be in effect by Jan. 6, requires FMCSA-regulated employers, Medical Review Officers, Substance Abuse Professionals, and other service agents to report information related to violations of DOT’s drug and alcohol regulations by current and prospective employees. Records will remain in the database for five years or until the driver has completed the requirements to return to duty. Employers will be required to query the Clearinghouse before permitting employees to operate a commercial motor vehicle on public roads and to annually query the database for each driver currently employed, among other regulations.

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CREDIT CHECKS

D.C. Bill Protects Job Applicants’ Credit Histories

Washington, D.C., has joined 11 states, New York City and Chicago in an effort to prevent employers from conducting credit history screens for job applicants. The D.C. Council Judiciary Committee unanimously passed The Fair Credit in Employment Amendment Act, which amends the city’s Human Rights Act of 1977 to include “credit information” as a protected trait. Employers found to be in violation could face up to $5,000 in fines. There is a catch, though. The federal Fair Credit Reporting Act permits employers to request credit reports of job applicants after first obtaining written permission from the individual being screened. The Act also requires employers to provide notification before taking adverse action. Some continue to argue that screening credit information strengthens fraud prevention, an issue that remains up for debate.

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IMMIGRATION AND E-VERIFY

E-Verify and Disposal of Historic Records

Organizations that have been using E-Verify for more than 10 years or E-Verify Employer Agents whose cases date back to more than 10 years should be aware of the Historic Records Fact Report and Fact Sheet. Of highest importance is information regarding the disposal of historic records. U.S. Citizenship and Immigration Services (USCIS) must annually dispose of transaction records that are more than 10 years old. April is the next time the purge will take place, so it is important for transaction records dated on or before Dec. 31, 2006, be downloaded through March 31, 2017.

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Staffing Company Escapes Potential $1.4 Million Form I-9 Penalty

Employers of all sizes may hire hundreds or thousands of employees every year, each of whom must properly complete a Form I-9 on time, as required by law. Organizations want to avoid the potentially crippling fines and penalties if a violation is discovered by the U.S. Immigration and Customs Enforcement (ICE) auditors. Although complex to determine, “successor liability” can occur based upon the relationship of two companies, a violation for which ICE will seek to hold all parties accountable. One staffing company recently managed to escape such liability for a whopping $1.4 million fine for alleged I-9 violations. In U.S. v. Spectrum Technical Staffing Services and Personnel Plus, Inc., 12 OCAHO no. 1291 (Nov. 2016), a four-count complaint filed by ICE alleged Spectrum should be held liable for violations relating to the employment of unauthorized workers, as well as Form I-9 verification failures. ICE later amended the complaint to include a newly formed staffing company, Personnel Plus, Inc., that they felt was suspiciously created after the Notice of Inspection was served. After further investigation, the courts determined that ICE had failed to show any exceptions to the general rule that asset purchases are not liable as successors, nor could they provide evidence that any transfer had taken place. But that won’t stop ICE from examining future cases and trying again.

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