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Verifile International Newsletter Issue #23

21 Jun 2017

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

In this issue of the International Newsletter:

WORLDWIDE

- Updating your Vendor Agreements to Comply with GDPR

AFRICA & MIDDLE EAST  
ISRAEL

- Israel Passes Data Security and Breach Notification Regulations

SOUTH AFRICA

- South Africa’s First DPA

SAUDI ARABIA

- HSBC Subsidiary Hired Senior Staff with Unaccredited Degrees

UNITED ARAB EMIRATES

- Deciphering Due Diligence in the UAE

ASIA PACIFIC

- APAC Companies Struggling to Attract Top Talent

INDIA

- Fake Degree Racket Busted, Four Held

- Congress wants New Law on Data Privacy in view of AADHAAR

NEW ZEALAND

- Proposed Amendments to New Zealand Privacy Law

SRI LANKA

- Sri Lanka Explores Digital Identity Council for Citizen Data

EUROPE  
POLAND

- Poland’s New Draft Data Protection Act

UKRAINE

- Ukraine: Commissioner’ S 2016 Report Outlines Need For Companies To “Re-Evaluate” Data Processing

UNITED KINGDOM

- One Fifth of Employers Reject Candidates Due to their Online Activity

- UK Firms Second Biggest Victims of Fraud and Cyber Crime Worldwide

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

- WP29 Releases Guidance on DPOS, Data Portability, One-Stop Shop

- Identifying the Data Protection Officer's Role

- EU-US Reach Data Transfer Agreement

- The Data Export's "White List"

NORTH AMERICA  
CANADA

- Federal Government Introduces Bill to Legalize Cannabis

- Random Alcohol and Drug Testing - New Hope for Ontario Employers?

- Court Reminds Arbitrators and Employers: Proper Investigation of Employee Medical Marijuana Use a High Priority

- Medical Marijuana: Considerations for Employers

- Court Upholds Random Drug and Alcohol Testing at Toronto Transit Commission

- Romanian Website Exposes Tension on Canadian Privacy

UNITED STATES

- A Regulatory Update of Contractual Clauses and Privacy Shield

- Burum Signs Applicant Privacy Bill

- Court Rejects FCRA Background Check Settlement as Providing Insufficient Recovery for Class members in Light of Ninth Circuit Ruling

- Courts Approve $950,000 FCRA Class Action Settlement Against McDonalds

- Improper Form of Background Check Disclosure Not Sufficient injury for Standing

- Kansas Federal Court Grants Partial Approval to Background Check Disclosure Class Action Settlement

- New Regulations Limit California Employers' Consideration of Criminal History

- New York City Approves Pay History Ban

- The City of Philadelphia has Agreed to Stay the Enforcement of the Philadelphia Wage Equity Ordinance Pending Resolution of Court Challenge

- Job Seekers Slam Faulty Background Checks

 

World wide news

Updating your Vendor Agreements to Comply with GDPR

In a bylined article, Technology Transactions partner Rebecca Eisner and associate Lei Shen discuss some of the issues to consider as you review your vendor agreements for GDPR compliance. For example, you may need to appoint a data protection officer, depending on the types of processing your company conducts. But another important and potentially time-consuming step that you need to complete is the review of your agreements with third-party vendors that will have access to your EU personal data to ensure those agreements comply with the GDPR. Even if your agreements already comply with the EU Data Protection Directive, you may still need to update those agreements to meet the new requirements of the GDPR.

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Africa Middle East

Israel

Israel Passes Data Security and Breach Notification Regulations

The Israeli Parliament has passed the Protection of Privacy Regulations (Data Security), 5777-2017. The Regulations introduce a far-reaching reform to the existing information security regulations that date back to 1986 and have become ill-suited for the current technology era. The new Regulations introduce an overarching data breach notification requirement for the first time in Israel. The Regulations will become standard in late March 2018, giving data handlers 12 months to prepare. The Regulations apply to anyone who owns, manages or maintains a database containing personal data in Israel. All Israeli organizations, companies and public agencies are subject to the Regulations.

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South Africa

South Africa's First DPA

Africa’s third-largest economy passed its Protection of Personal Information (POPI) Act in 2013, but the data protection law is not yet fully operational. The country's Information Regulator is currently drafting its procedural rules for things like handling complaints about privacy violations, and mapping out its future committees for education and outreach, enforcement, and dispute resolution. And local legal professionals are skeptical about how well-resourced it will be. Its budget allocation in the current financial year is just 10 million rand (roughly $770,000), although that will rise to 25 million rand in the next financial year. The country passed its data protection law in 2013, but it won’t be fully operational until the regulator is as well.

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South Africa

HSBC Subsidiary Hired Senior Staff with Unaccredited Degrees

Two senior compliance staff hired by HSBC Saudi Arabia, a subsidiary of the main British bank, lack the accredited bachelor’s degree necessary even to apply for an entry-level position at the bank, based on its current hiring guidance. Compliance failings have cost British bank HSBC more than a billion pounds in fines worldwide, despite the fact that HSBC has hired thousands of new compliance staff worldwide. The probe found that Ashraf BinAli, formerly head of regulatory and financial crime compliance at HSBC Saudi Arabia, boasted a business degree from “Kensington University,” a bogus institution in California with no official accreditation to operate as a university. Kensington University, an online distance learning provider, no longer exists, having been forced out of business by state regulators in California. It was also banned from operating in Hawaii in 2003.

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United Arab Emirates

Deciphering Due Diligence in the UAE

With no centralized company register, and more than 40 different free zones, obtaining basic information about UAE free zone companies may pose a daunting challenge. Even so, there are still effective tools available to uncover the information you need. Law firm Fichte & Company offers guidance on legal due diligence in the UAE, including how the need for legal due diligence arises, the level of due diligence a company may need, the due diligence tools that are available in the UAE, key tools for accurate background checks, the usual contents of a due diligence report, and more.

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Asia Pacific

APAC Companies Struggling to Attract Top Talent

Although labor market activity is increasing in the Asia-Pacific, employers in the region are struggling to attract and retain top talent, according to surveys by Willis Towers Watson (WLTW). Nearly half of Asia Pacific firms said that hiring has increased over the last year, according to WLTW’s 2016 Global Talent Management and Rewards Survey. However, employers said they are experiencing difficulty attracting critical-skill employees (63%), top performers (73%) and high-potential employees (72%). They also reported challenges in retaining high-potential employees (69%), top performers (65%) and critical-skill employees (58%). Results also revealed that 65% of Asia-Pacific employees said their immediate manager or supervisor treats them with respect. Only 57% said their managers clearly communicate goals and assignments, and 6 in 10 employees answered that their managers are effective at developing talent and leading change.

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India

Fake Degree Racket Busted, Four Held

Shahbul Haque of New Delhi got more than he bargained for when he was approached by an educational consultancy agency in Janakpuri. He paid Rs 5,000 and was given a degree certificate, a marksheet and a migration certificate that entered his year of passing as over a decade earlier. When he approached the Tilak Nagar police in January, it was discovered that Haque was approached by Rupesh Kumar after applying on a website to appear for the Class X examination. The police tracked him down and arrested him, along with four others, who were linked to six fake certificates. The four were running an elaborate scheme, securing money from the sale of more than 2,000 certificates since 2014.

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Congress wants New Law on Data Privacy in view of AADHAAR

Indian Congress leader Deepender Singh Hooda is urging the Indian government to bring new legislation on data privacy, pointing out that people are facing the risk of data theft, especially with a system like Aadhaar in place. Hooda noted that that the Unique Identification Authority of India (UIDAI) recently had to go to the local police to file a complaint against data misuse by Axis Bank, business correspondent Suvidhaa Infoserve and e-sign provider eMudhra. Hooda is asking for the Indian government to create data privacy policies that mirror policies in other countries, such as the EU.

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New Zealand

Proposed Amendments to New Zealand Privacy Law

The New Zealand Privacy Commissioner, John Edwards, recently released a report reviewing the Privacy Act 1993. The report recommends amendments to the Act as part of the overhaul of New Zealand privacy law that was announced by the Ministry of Justice in 2014. The Commissioner’s recommendations focus on strengthening enforcement powers and aligning laws internationally, including the European Union General Data Protection Regulation (GDPR) that will go into effect in May 2018. The recommendations include a right to personal information portability, controls on re-identification, a new power to require demonstrations of agency compliance, a new civil penalty provision, adjustments to criminal offenses, and public register reform.

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Sri Lanka

Sri Lanka Expores Digital Identity Council for Citizen Data

Sri Lanka is looking to establish a Digital Identity Council to implement a national policy on the collection, storage, sharing and use of citizens’ personal data under the proposed centralized Household Transfer Management project. The project aims to establish a National Digital Identifier and National Digital Transaction platform wher data, including biometric information of citizens, would be stored and shared with government organizations through a National Authentication Platform. The Digital Identity Council will draft the amendment and present the legislation to the Sri Lanka Parliament.

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Europe

Poland

Poland's New Draft Data Protection Act

The Polish Ministry on Digital Affairs has published a new draft personal data protection act that will accompany the entry of the EU General Data Protection Regulation in Poland. The draft has not been finalized and will be put out to public consultation. The major changes mostly concern procedural aspects of proceedings carried out by the Polish data protection authority aimed at providing effective legal tools. Other suggested changes include new powers of the Polish DPA, changes to administrative fines versus civil claims, new powers that will require data controllers and data processors to be always ready for inspection and the fact that information security administrators that are active on May 24, 2018, will act as data protection officers until September 1, 2018.

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Ukraine

Ukraine: Commissioner's 2016 Report Outlines Need for Companies to "Re-evaluate" Data Processing

The Ukrainian Parliament Commissioner for Human Rights, Valeriya Lutkovska, released her annual report to Parliament, which outlines the actions her office took in 2016 in relation to data protection. In particular, the Commissioner summarized the most concerning data protection violations revealed by inspections of data controllers, and provided guidance to firms on policies to aid in compliance with Ukrainian data protection legislation. The Commissioner examined 1,306 complaints from data subjects, and carried out 76 inspections of data controllers, a large proportion of which included insurance operators and consumer services. The Commissioner also announced that, with the support of the Council of Europe, the Parliament Committee on Human Rights, National Minorities and International Relations had established a working group to amend the Law in accordance with the General Data Protection Regulation (Regulation (EU) 2016/679).

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United Kingdom 2

One Fifth of Employers Reject Candidates Due to their Online Activity

One in five employers has rejected a prospective job candidate because of something they have seen in their online activity, claims new research from YouGov Omnibus. The most common reason for candidates being turned down from a job opportunity were for aggressive or offensive language – 75 percent said this would discourage them from hiring someone. More than 70 percent of employers would be put off by references to drug use, while more than half would consider not hiring someone because of bad spelling and grammar. Other reasons included photos of drunk behavior (47 percent), political views/activity (29 percent); general over-sharing of content (29 percent); and vanity (26 percent). LinkedIn profiles are the most popular website for checking job candidates, with almost half of surveyed employers using the platform to screen potential employees, while 46 percent look at Facebook and 28 percent view Twitter.

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UK Firms Second Biggest Victims of Fraud and Cyber Crime Worldwide

According to Kroll's Global Fraud and Risk Report, fraud incidents have risen by 16 percent over the last year, with 90 percent of respondents saying they experienced a cyber incident during the period. The global fraud average stands at 82 percent. The most common types of fraud in the UK were theft of physical assets and the misappropriation of funds, with most fraudsters coming from inside the company. Almost half (41 percent) of executives said that junior employees were the biggest threat, followed by senior or middle management employees (32 percent) and ex-employees (30 percent). Alongside fraud, the UK was also named as the country with the second highest rate of cyber incidents, with 92 percent of executives saying they had experienced an attack or information loss in the last year, compared with the global average of 85 percent.

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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.”

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WP29 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.

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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.”

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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.

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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.

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North America

Canada 2

Federal Government Introduces Bill to Legalize Cannabis

In April, the federal government introduced Bill C-45 – the Cannabis Act – which will, among other things, permit persons age 18 and over to possess up to 30 grams of dried or fresh cannabis. It will also permit the government to authorize the possession, production, distribution, sale, importation and exportation of cannabis, as well as, where authorized under provincial legislation, permit persons to possess, sell or distribute cannabis. It will, however, prohibit possession by a person of 30 grams or more, and the possession by an individual of more than four cannabis plants that are not budding or flowering. On the same date, Bill C-46 was introduced, which would amend the Criminal Code to make it an offence to drive within two hours of having an illegal blood drug concentration.

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Random Alcohol and Drug Testing - New Hope for Ontario Employers?

A recent decision for the Ontario Superior Court of Justice allow random alcohol and drug testing in the workplace. The final word is yet to come from a decision from an Ontario labour arbitrator. In 2008, the Toronto Transit Commission (TTC) approved the introduction of a “Fitness for Duty Policy”, however, prior to the Policy coming into effect, the Amalgamated Transit Union (ATU) filed a policy grievance. The hearing still is not complete. Under the Policy, random drug and alcohol testing would be applied to employees in safety-sensitive specified management, senior management and designated executive positions. The breathalyzer tests and the collection of oral fluid samples would be carried out by DriverCheck Inc.

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Court Reminds Arbitrators and Employers: Proper Investigation of Employee Medical Marijuana Use a High Priority

When an employer finds that an employee has chosen to use medical marijuana for various health conditions, it has the obligation to consider possible accommodations. When the employer fails to accommodate an employee who uses medical marijuana for a disability, it could face discrimination violations. The Newfoundland and Labrador Supreme Court recently reminded employers and arbitrators that there must be a full analysis of the contest and circumstances in which an employee uses medical marijuana. There may be significant costs incurred in mishandling such a case, like that of IBEW, Local 1620 v. The Lower Churchill Lower Transmission Employee Association Inc.

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Medical Marijuana: Considerations for Employers

In response to the increase in the use of prescription marijuana, the Government of Canada implemented the Access to Cannabis for Medical Purposes Regulations. As health care practitioners become more at ease in prescribing marijuana for medical purposes, employers are faced with the duty to accommodate their “disabled employees” or update its drug-free policy. While it remains true that, under human rights legislation, individuals are afforded equal treatment in employment and freedom from discrimination because of a disability, the impairment caused by marijuana’s use can affect both the employee’s ability to perform his or her employment tasks and can pose a risk or threat to others. In response, employers can claim “undo hardship,” in an effort to remain a drug-free workplace.

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Court Upholds Random Drug and Alcohol Testing at Toronto Transit Commission

Ontario’s Superior Court Associate Chief Justice, the Honourable Frank Marrocco, denied an application by the Amalgamated Transit Union Local 113 for an injunction against the TTC's decision to implement random drug and alcohol testing. Random testing is part of the TTC's broader fitness for duty policy to improve the safety of its workplace, its customers and all Toronto road users. Random testing will begin in April. Since 2010, the TTC has had a policy that permits workplace testing for drugs and alcohol under certain conditions. In 2011, the TTC board approved adding random drug and alcohol testing to the policy. Approximately 10,000 employees in safety sensitive positions are part of the TTC’s random testing program, including designated management positions and all executives. The TTC will randomly test 20 percent of its workforce annually.

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Romanian Website Exposes Tension on Canadian Privacy

A Romanian website that says it’s dedicated to keeping “information free and open” is raising questions about how much personal information should be included in Canadian legal rulings. Over the past year, almost 100 people have complained to the Canadian Legal Information Institute (CanLII), after reading legal decisions that mention their names through Google searches. The complaints CanLII has fielded stem not from decisions posted on its own website, but on a site hosted in Romania that asks for a fee for quick removal of personal information. The situation has highlighted the growing tension between open access to public information and the desire to protect personal privacy in the digital age.

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United States

A Regulatory Update of Contractual Clauses and Privacy Shield

At the heart of a case that could affect the future of private transatlantic data flows is the future viability of Standard Contractual Clauses, a private means of securing legal transfer of personal data out of the European Union (EU) to the United States. Irish Data Protection Commissioner Helen Dixon wants the case referred to the Court of Justice of the EU to determine whether such contracts are essentially equivalent. She pointed out that, although there were agreements pertaining to details of the case, there also were differences regarding many of the facts. Of the most concern is Section 702, which is up for renewal at the end of the year.

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Burum Signs Applicant Privacy Bill

In April, Gov. Doug Burgum signed a bill that shields applicants for public jobs in North Dakota. The new law makes any records that could identify an applicant for a job with a “public entity” confidential until at least three finalists are designated. Opponents say it was too broad, while supporters say the bill would provide some privacy to those seeking work and improve the talent pool for public jobs. The North Dakota House also passed legislation Monday requiring child care providers to file a renewal application at least two months before their current license expires. Another bill was passed that was spurred by controversy over the lack of pre-game prayers at a high school event. And finally, State lawmakers may study moving local elections to the general election under a resolution approved by the state Senate.

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Court Rejects FCRA Background Check Settlement as Providing Insufficient Recovery for Class Members in Light of Ninth Circuit Ruling

This month, the U.S. District Court for the Northern District of California declined to preliminarily approve a class action settlement of the Fair Credit Reporting Act (FCRA) claim because the payment to class members was unreasonably low. In Lagos v. Leland Stanford Junior University, the plaintiff filed the class action, alleging the defendant violated the background check disclosure provisions of the FCRA, specifically that it was not a stand-alone document. After months of litigation, the parties settled on a settlement that would pay each class member a net amount of $13.82, demonstrating an 86% discount between the settlement amount and the minimum statutory damages ($100) if the plaintiff fully prevailed on his claim was not warranted.

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Courts Approve $950,000 FCRA Class Action Settlement Against McDonald's

In March, the United States District Court for the Central District of California granted final approval of a Fair Credit Reporting Act (FCRA) class action against McDonald’s. James Wesley Carter alleged that the fast-food restaurant violates rights of consumers by failing to provide job applicants with a clear and conspicuous disclosure, in a document consisting solely of the disclosure. The settlement class includes all employees or applicants for employment at McDonald’s who did not receive the stand-alone document. McDonald’s has agreed to pay $950,000 to class members and also ceased obtaining background reports as of Nov. 12, 2015.

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Improper Form of Background Check Disclosure Not Sufficient Injury for Standing

Courts have been struggling to define the contours of standing in “no injury” ever since the Supreme Court decided Spokeo, Inc. v. Robins last year. The District of Minnesota recently granted a motion to dismiss a Fair Credit Reporting Act (FCRA) claim in which a plaintiff alleged that the defendants failed to provide a compliant background check disclosure. In Fields v. Beverly Health and Rehabilitation Services, Inc. et al., the plaintiff worked for the defendants for 14 months. She later sued the defendants, claiming that their background check authorization did not constitute a document consisting solely of the disclosure that a background check would be obtained. According to the Court, the FCRA’s disclosure provision does not give consumers a right to sue upon receipt of a con-confusing disclosure that was simply presented in an improper form.

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Kansas Federal Court Grants Partial Approval to Background Check Disclosure Class Action Settlement

In January, the United States District Court for the District of Kansas granted partial preliminary approval to the class settlement in Lengel v. HomeAdvisor, Inc., No. 15-2198-KHV. The plaintiff alleged that the company violated the Fair Credit Reporting Act (FCRA) when it provided her a background check disclosure and authorization form that did not consist “solely” of the disclosure. She sought only statutory and punitive damages, foregoing any claim for actual damages. The parties reached an agreement to settle the case on a class-wise basis, filing an unopposed motion for preliminary approval of the class settlement in November 2015 and still pending until January 2017. The Court identified three problems that precluded preliminary approval in full.

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New Regulations Limit California Employers' Consideration of Criminal History

The California Fair Employment and Housing Council (FEHC) has finalized new regulations on employer consideration of criminal history, largely adopting the guidance set forth by the Equal Employment Opportunity Commission (EEOC). The regulations include expanding the types of criminal history employers many consider; requiring notice to the applicant/employee of a disqualifying conviction and providing a reasonable opportunity to present evidence of factual inaccuracy; and prohibiting consideration of criminal history when doing so will result in an adverse impact on individuals within a protected class. Employers in the state should review their policies on use of criminal history in hiring and modify any practices to ensure compliance with the FEHC regulation.

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New York City Approves Pay History Ban

In April, the New York City Council approved legislation that will ban employers from requesting or using job applicants’ salary history when making hiring decisions. Introduction 1253-A is similar to those bans in Massachusetts and the City of Philadelphia, along with 20 other city and state legislatures that have introduced provisions. It is intended to address gender-based wage disparities by eliminating the potential for discrimination based on previous salary.

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The City of Philadelphia has Agreed to Stay the Enforcement of the Philadelphia Wage Equity Ordinance Pending Resolution of Court Challenge

Although the Philadelphia Wage Equity Ordinance has generated controversy, the City of Philadelphia has agreed to stay the enforcement. In April, the Chamber of Commerce of Greater Philadelphia filed a lawsuit in the United States District Court for the Eastern District of Pennsylvania seeking declaratory and injunctive relief to prevent the City of Philadelphia and the Philadelphia Commission on Human Relations from enforcing the Ordinance. The suit alleges that the Ordinance violates the First Amendment, the Due Process clause, the Commerce Clause and the Pennsylvania Constitution and Home Rule Act. At a recent scheduling conference, the City agreed to stay enforcement of the Ordinance pending a resolution of the motion for preliminary injunction.

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Job Seekers Slam Faulty Background Checks

Two federal lawsuits in Chicago accuse background check companies of costing job applicants work by sending prospective employers outdated and inaccurate background check reports. Ahmad Khalid alleges Backgroundchecks.com cost him a job because it reported sealed criminal information and then duplicated it, making it appear as though Khalid had a longer criminal history than he actually had. The crimes were committed between 10 and 30 years ago in Illinois and, after petitioning a Cook County judge, they were to be shielded from the public. In another case, Jeneen Scott said her sealed criminal information from about 10 years ago was revealed by credit report company Sterling Infosystems.

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