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Verifile International Newsletter Issue #3

15 Jan 2014

Welcome to our first international newsletter for 2014! We aim to continue keeping you up to date with major legislative changes and significant issues from around the world which impact employers in relation to employment screening.

Best wishes for the New Year from all of us at Verifile. We hope that 2014 will be prosperous at least as 2013 was if not more.

In this issue of the International Newsletter:

WORLDWIDE NEWS

- The Role of the Medical Review Officer (MRO) in International Workplace Drug Testing

- The Logistics of International Collections

- Promising Signs for Global Hiring Heading into 2014, According to Manpower Survey

AFRICA & MIDDLE EAST  
ISRAEL

- Israeli Bill Would Wipe Clean Criminal Record of Combat Soldiers

SOUTH AFRICA

- South Africa Adopts Comprehensive Privacy Law

ASIA PACIFIC  
AUSTRALIA

- Second Stage Australian Privacy Principle Consultation Begins

- 1.7 Million Reasons to Prepare to Comply as the Privacy Law Reforms

- The Sobering Facts About Employee Fraud??

- Employing Foreign Workers? You Need to Be Proactive

CHINA

- Amendments to China's Consumer Protection Law Add Compliance Obligations

INDONESIA

- Mitigating the Risks of Doing Business in Indonesia

MALAYSIA

- Personal Data Protection Act Enters into Force

NEW ZEALAND

- New Government Chief Privacy Officer

- John Edwards Named New Privacy Commissioner

- Draft Amendments Reform DPO Functions

VIETNAM

- Vietnam’s New Decree on Work Permits

EUROPE

- Reshaping Global Privacy Webinar - Key Takeaways

- Where Next for the Draft Data Protection Regulation

- Data Protection Rules Could Cost Firms £75,000 Each Year

- EU Gives U.S. Safe Harbor Another Chance

- EU, U.S. Officials Indicate Potential Privacy Agreement at Data Protection Congress

- The EU and APEC: A Roadmap for Global Interoperability?

FINLAND

- International Solutions: Four Laws that Regulate Drug Testing in Finland

GERMANY

- Germany Appoints a New Federal DP Commissioner

THE NETHERLANDS

- Dutch DPA Gets Power to Fine

POLAND

- Draft Amendments Reform DPO Functions

SPAIN

- Job Numbers Jump +40% in November

UNITED KINGDOM

- What Happened to Duty of Care to the Vulnerable?

- Is Social Media Being Used to Find and Reject Candidates?

- ICO Issues Data Protection Warning to Employers

- 74% of Recruiters Declare 2013 Better than 2012

- Full UK Court Listings Could be Online by April

NORTH AMERICA  
CANADA

- B.C. Criminal Record Checks Spur Privacy Concerns

- Frequently Asked Questions About Employee Background Checks

- Alberta Privacy Legislation Shot Down - Will Also Affect BC

- Privacy in the Workplace: A New Tort is Born

- Wyant Examining Privacy Gap Options: Employee Records a Key Concern

- Manitoba’s New Privacy Law has Implications for Cross-Border Employers

- Canadian Chapter Meets with Canadian IAPP Managing Director

UNITED STATES

- The Plain Truth About Safe Harbor

- Happy Birthday to the FACTA!

- Lawsuit Raises FCRA Fears

- State "Ban the Box" Legislation Gains Momentum

- FMCSA To Change Violation Challenge Process

- Legislation Introduced to Prohibit Employers From Requiring Credit Report Disclosure

- Disney Defends its Background Screening Policies

- Walt Disney Company and First Choice Background Screening are Subjects of FCRA Class Action Claims

- The Background Backlash Continues – Texas Sues the EEOC Over its Criminal Background Guidance

SOUTH AMERICA  
COLOMBIA

- Employers’ Obligations to Protect Workers’ Information

URUGUAY

- Uruguay Legalizes Marijuana!

 

 

World wide news


-ALCOHOL & DRUG SCREENING-

The Role of the Medical Review Officer (MRO) in International Workplace Drug Testing
The role of the Medical Review Officer (MRO) internationally may evolve differently than the role of the MRO in the United States based on practical, cultural and legal considerations. It would be presumptuous, impractical and likely imprudent to assume that the United States’ MRO process will be the best model for international test review. In fact, in a review of 200 countries, a Drug and Alcohol Industry research team found information on the role of the MRO in only 36 countries or 18% of the 200 countries researched. This is because the information available through accepted legal research practices is insufficient due to the need for practical in country information. The MRO process in the U.S. could be a good starting point for the global community as it looks at workplace drug testing. In providing MRO support in various countries the MRO must anticipate how to handle certain situations that may or may not arise based on the historical experience in North America. Some of these resolutions are well established when providing MRO review in North America but may not be established for practice elsewhere. As a best practice, it is important that employers establish a policy that is consistent with local law and regulations prior to program implementation. By so doing, the MRO can review a specific result in compliance with employer’s policy and program.

Read more

 

The Logistics of International Collections
The most important aspect to remember when organizing a collection outside of the United States is patience. Workplace drug testing is so common in the U.S., many employers expect next day service. This is not the case in many countries across the globe, but the situation is changing. As U.S. Multinational companies seek to implement standard drug and alcohol polices across all of their facilities, the network of collection sites around the world grows. More European countries are enacting drug testing legislation under Health and Safety regulations. But even as the drug abuse problem grows, there are still some countries where it is almost impossible to arrange for a drug screen collection. Some of the hurdles to surmount when organizing a collection include: Type of collection - (urine specimens are recommended); Cultural differences; Time differences and seasonal and holiday variations; Language; Laws and guidelines; Lack of familiarity; Logistics – laboratories, collections (sites, mobile collectors), transport, test results; Cost of the collection; Payment to collection sites - sites will only accept payment in local currency; and Donors signing of chain of custody documentation. Another challenge with international collections is getting quality collections. The Substance Abuse and Mental Health Services Administration (SAMHSA) guidelines are not followed outside the U.S. and there are some geographical areas that follow no particular collection guidelines at all. It’s best to adjust your process for each country.

Read more

 

-EMPLOYMENT OUTLOOK-

 

Promising Signs for Global Hiring Heading into 2014, According to Manpower Employment Outlook Survey
Employers across the globe expect a cautious yet positive approach to hiring for the start of 2014, despite ongoing economic uncertainty and disruption. Upticks in payrolls are anticipated by varying degrees, according to the first-quarter Manpower Employment Outlook survey. The survey revealed: Employers in 34 of 42 countries and territories expect to increase payrolls in the next three months, compared with 29 in Q4 2013; Employers in Taiwan, India, New Zealand, Colombia and Singapore report the most optimistic outlooks; Japanese employers report the most optimistic hiring intentions since Q2 2008; Brazilian employers forecast their weakest hiring climate since the survey began in Q4 2009, but still expect favorable hiring; U.S. employers report steady hiring activity; and the region’s least optimistic hiring plans are reported in Argentina. “Employers in many parts of the world anticipate mostly modest payroll gains, which may nevertheless be a sign of some gathering hiring momentum as we head into 2014,” said Jeffrey A. Joerres, ManpowerGroup Chairman and CEO. “Despite fears that the recent government shutdown might dent hiring confidence and the multitude of outside factors that contribute to an uncertain landscape, American employers continue on the five-year pattern of steady jobs growth,” said Jonas Prising, ManpowerGroup President.

Read more


Africa Middle East


Israel

-CRIMINAL RECORDS-

Israeli Bill Would Wipe Clean Criminal Record of Combat Soldiers
Combat soldiers with a criminal past will be given a “second chance,” according to a bill approved by the Knesset plenum. The bill, initiated by MK Orly Levy-Abecassis (Likud Beytenu), who is the chairwoman of the Committee on the Rights of the Child, would allow at-risk youth who underwent rehabilitation during their military service and were recruited into combat positions to have their criminal record wiped clean. Levy-Abecassis explained that when these soldiers complete their military service and go into the workforce, they encounter difficulties in terms of finding jobs. Their past “stain,” she said, prevents them from working as security personnel or in any other position that would require carrying a gun, jobs that many combat soldiers seek after the army. The chairwoman said the proposed law will “end the paradox and injustice toward people who served as fighters and carried weapons and who after their service cannot work with one, even though they are called up for reserve duty and use arms at that same time.” The idea for the draft law came after Levy-Abecassis received an appeal from a combat soldier and former at risk teenager who had been denied a permit to carry a civilian weapon due to his criminal record.

Read more

 

South Africa 2

-DATA PROTECTION & PRIVACY-

South Africa Adopts Comprehensive Privacy Law
South African President Jacob Zuma has signed into law the Protection of Personal Information Bill, which protects citizens' right to privacy. The law is heavily influenced by the EU draft DP Regulation and European DP tradition. "The Act will give effect to the right to privacy, by introducing measures to ensure that the personal information of an individual is safeguarded when it is processed by responsible parties," said presidential spokesman Mac Maharaj.” The Act also seeks to balance the right to privacy against other rights, particularly the right of access to information, and to generally protect important interests, including the free flow of information within and across the borders of the republic. Containing eight principles responsible parties need to comply with, the Bill gives expression to the right to privacy provided for in the Constitution. The right to privacy includes the right to protection against unlawful collection, retention, dissemination and use of anyone's personal information. The Bill also establishes the Office of the Information Regulator as an independent, statutory body, accountable to the National Assembly. The Information Regulator, amongst other duties and functions, will take over from the Human Rights Commission powers and functions relating to the Promotion of Access to Information Act. This Bill will bring South Africa in line with international data protection laws.

Read more


Asia Pacific

Australia

-DATA PROTECTION & PRIVACY-

Second Stage Australian Privacy Principle Consultation Begins
In the case, Austin v Honeywell Ltd, the Federal Circuit Court determined that the Privacy Act 1988 (Cth) is not a "workplace law" for the purpose of protecting a person against adverse action under section 340 of the Fair Work Act 2009 (Cth) (Act). However, the judge conceded that a provision within an Act or regulation could regulate the relationship between employers and employees even though the Act or the regulations as a whole did not do so. In any case, the Judge found that the employer had discharged the onus of proving that it had terminated her employment because of her attitude to her manager and not because she had commenced an adverse action claim. Not all statutory rights amount to workplace rights granting protection against adverse action. Whether a workplace right exists depends on whether the provision or Act is aimed at regulating the relationship between employers and employees. The Privacy Act was held not to be a workplace law, therefore it did not give rise to a workplace right.

Read more

1.7 Million Reasons to Prepare to Comply as the Privacy Law Reforms
Businesses that deal with an individual’s personal information in any way must take steps to deal with the new privacy amendments or risk penalties of up to $1.7 million for breaches by corporations and up to $340,000 for breaches by individuals. The amendments primarily apply to businesses that have an annual turnover of more than $3 million. The Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth) essentially rewrites the existing privacy laws. The Australian Privacy Principles (APPs) replace the previous National Privacy Principles (for private entities) and Information Privacy Principles (for public entities). Under the new amendments, the Australian Information Commissioner has enhanced powers to resolve privacy issues, such as investigating privacy breaches on its own motion, accepting enforceable undertakings, seeking civil penalty orders, declaring compensation orders and conducting privacy performance assessments. The credit reporting provisions have also been comprehensively revised to expand the number of entities subject to the credit reporting provisions and include similar requirements to those in the APPs. Credit providers will also be able to access further information when assessing an individual’s credit worthiness. Most businesses that render invoices with deferred payment terms (more than seven days) will be subject to the new credit reporting provisions. The amendments will commence on 12 March 2014.

Read more

-OCCUPATIONAL FRAUD-

The Sobering Facts About Employee Fraud
One of the topics I frequently return to is the risk assessment aspect of a recruiter's job, or the 'defensive' recruitment skills, such as background and reference checking, that are a necessary part of doing a complete job as a recruiter. Unfortunately, there is still an undesirable tendency for these skills to be deemed an 'admin' part of a recruiter's job.

Read more

-IMMIGRATION & E-VERIFY-

Employing Foreign Workers? You Need to Be Proactive
If you currently employ, or are considering employing workers from overseas, you need to be aware of two recent legal developments: the tightening of the rules hiring foreign workers and the potential cost of underpaying workers. A recent media report suggests that there are an estimated 100,000 vacant jobs in Australian agricultural businesses. The shortage of Australian workers who are interested in agricultural work suggests that employers in the agricultural sector will continue to look to foreign labour as a means of filling the gap. While the Federal Government has tightened laws regarding the hiring of overseas labour, the Fair Work Ombudsman has stated that in the last two years it has received in excess of 200 complaints from foreign workers who claim to have been underpaid. A recent decision in the Federal Circuit Court of Australia demonstrates that the Ombudsman and the Courts will not take cases of proven underpayment of foreign workers lightly. Therefore, it is crucial that employers meet their workers’ minimum pay and condition requirements. Employers will also need to demonstrate that they have taken reasonable steps to verify that a worker is not an unlawful non-citizen and not a lawful non-citizen in breach of a work-related visa condition. Individuals who fail to do so may be fined $15,300 or imprisoned for up to 2 years. A company may be fined up to $76,500 for a single offence.

Read more



China

-DATA PROTECTION & PRIVACY-

Amendments to China's Consumer Protection Law Add Compliance Obligations when Handling Personal Information
On October 25, 2013, the Standing Committee of China's National People's Congress passed an amendment to the 1993 Law of Protection of Consumer Rights and Interests, which addresses longstanding issues related to e-commerce fraud and illegal disclosures of consumers' personal information. The Amendment, which takes effect on March 15, 2014. The passage of the Amendment comes on the heels of a flurry of legislation aimed at strengthening the protection of personal information in China, including the Decision on Strengthening Protection of Online Information , the Provisions on the Protection of the Personal Information of Telecommunications, and the Internet Users and the Provisions on Registration of the True Identity Information of Phone Users . Collectively, the new legislation related to the protection of personal information has significantly advanced and clarified China's data protection regime. The Amendment applies to any company that provides goods or services to consumers within China. Unlike some of the recent privacy-related regulations and guidelines issued by the Chinese government, the Consumer Protection Law, as amended by the Amendment, sets forth more specific requirements related to the processing of personal information and applies broadly to all companies providing goods or services to consumers in China. Thus, it is important for companies operating in China to review their practices related to the collection, use, and disclosure of personal information in China and take the necessary steps to achieve compliance with the Amendment's privacy-related provisions by March 15, 2014.

Read more

 

Indonesia

 

-BACKGROUND SCREENING NEWS-

Mitigating the Risks of Doing Business in Indonesia
In an increasingly competitive environment, multinational companies continue to expand and move into new and unfamiliar territories, either to take advantage of lower operating costs, a cheaper workforce, access to untapped natural resources or what is perceived as a potentially large market. In their haste to take advantage of these ‘attractions’, companies often fail to carry out the necessary due-diligence and research to identify the potential risks and pitfalls associated with such a venture. Indonesia, like many other developing countries, aside from presenting attractive opportunities also presents a variety of potential risks to which investors may be exposed and vulnerable. These risks range from six years of political and economic turmoil, a history of civil unrest, religious conflict and the threat posed by Islamic extremist groups, socio-economic issues and the resulting effect of increased unemployment. Organisations seeking to enter and do business in Indonesia need to mitigate these risks by putting in place a well planned risk management strategy to ensure from the outset that they have carried out not only an assessment of the risks, but are also well positioned to manage any situation that may present a threat to their assets be it people, proprietary information, property or reputation. Doing so naturally reduces the chances of a company becoming a victim, but also minimizes the likely fallout in the event an incident were to occur.

Read more


Malaysia

 

-DATA PROTECTION & PRIVACY-

Personal Data Protection Act Enters into Force
The Malaysian government has the entry into force date of the Personal Data Protection Act (PDPA) 2010. The Act will enter into force on 15 November 2013 and will introduce an omnibus privacy regime in Malaysia for the first time. The publication of the PDPA is accompanied by a number of regulations and orders that clarify some of its provisions. The PDPA was passed by the Malaysian Parliament in May 2010, and received Royal Assent in June 2010, however its entry into force had been delayed. "The PDPA will apply to any person who processes or has control over the processing of any personal data, known as a data user,” said Jillian Chia, Senior Associate at Skrine. “It is important to note that 'processing' is defined widely under the PDPA to cover a wide range of activities, including using, disseminating, collecting, recording and/or storing personal data. Furthermore, only individuals are referred to as 'data subjects' under the PDPA." The PDPA introduces, among other things, seven data protection principles which data users must comply with. Violation of any of these principles will result in a fine of up to 300,000 ringgit (approximately 74,485€) and/or up to three years' imprisonment. "Where a data user has collected personal data before the date of coming into operation of the PDPA, such users will have three months to comply," said Chia.

Read more



New Zealand

-DATA PROTECTION & PRIVACY-

New Government Chief Privacy Officer
State Services Minister Jonathan Coleman and Internal Affairs Minister Chris Tremain say there will be a stronger focus on privacy and security across government with the creation of a Government Chief Privacy Officer (GCPO). "The Department of Internal Affairs is being realigned to strengthen privacy and security across the public service,” said Coleman. “The creation of a Government Chief Privacy Officer gives additional support to the Government Chief Information Officer (GCIO) to set standards and provide leadership and assurance that privacy is managed appropriately." The GCIO is leading a two year programme to ensure New Zealanders have trust and confidence that their information is secure by improving information privacy and security practices in government. The GCPO role will lead an all-of-government approach to privacy and will be responsible for providing leadership, assurance and advice on privacy issues, support to agencies to meet their privacy responsibilities, and coordinated engagement with the Privacy Commissioner. Internal Affairs will work closely with the Privacy Commissioner to develop the new function. State sector chief executives remain accountable for privacy in their agencies and Ministry of Justice continues to manage privacy policy.

Read more

John Edwards Named New Privacy Commissioner
Wellington lawyer John Edwards is the new Privacy Commissioner. He replaces Marie Shroff who has completed two five-year terms in the role. Edwards is a barrister and solicitor who has been working in public law and policy for more than 20 years, and has been on the staff of the Office of the Ombudsmen, the Privacy Commissioner and the Ministry of Health. He provides general corporate services for a number of smaller Crown agencies, and gives advice and training across the public sector on information law issues. Edwards regularly undertakes investigations and reviews for departments, Crown entities and ministers. "Mr. Edwards' public and private sector experience gives him a highly informed perspective on data privacy and data matching issues,” said Justice Minister Judith Collins. “I am confident Mr. Edwards will be highly credible in the role of the Commissioner and will be able to engage both the public and private sectors." The Privacy Commissioner's Office has a wide range of functions including investigating complaints about breaches of privacy, running education programmes, and examining proposed legislation and how it may affect individual privacy. Shroff said the task of being New Zealand's privacy watchdog had become increasingly demanding and she wished Edwards well. Edwards will take up the appointment in February.

Read more

Draft Amendments Reform DPO Functions
The Ministry of Economy published - on 16 October 2013 - draft amendments to the Data Protection Act 1997 (the Act). The amendments offer a simplified registration procedure if an organisation appoints an Administrator of Information Security, which is similar to a Data Protection Officer (DPO). However, organisations choosing to appoint a DPO will be subject to a 'significant extension of obligations.' Under the current law, while appointing a DPO is optional, notifying the GIODO of all data filing systems containing personal data and registering all data filing systems containing sensitive personal data with the GIODO is mandatory. Under the proposed amendments, controllers who choose to appoint a DPO only have to keep an internal, publicly available, record of data filing systems containing personal data. They must still register any systems containing sensitive personal data. It seems that the draft may in practice introduce additional burdens for companies, which decide to appoint a DPO. The draft amendments also introduce several new obligations for data controllers concerning DPOs. Public consultations on the amendment are expected to begin on 12 November 2013.

Read more

 

 

Vietnam

-LEGAL ISSUES-

Vietnam’s New Decree on Work Permits
On 1 May 2013, the new Labour Code of Vietnam came into force, introducing many significant changes concerning employment matters. To give effect to these changes, the government has issued a number of guiding regulations. The new Labour Code of Vietnam restricts the employment of expatriate employees in Vietnam. To implement the provisions of the Labour Code on work permits, on 5 September 2013 the government issued Decree No.102/2013/ND-CP (Decree 102). As a general rule, in order to work in Vietnam a foreigner must secure a work permit from the labour authority (Work Permit). Decree 102 introduces a new pre-recruitment procedure that must be carried out by employers. Specifically, employers must submit for approval an annual report on their requirements for expatriate employees to the chairman of the local Provincial People's Committee. Any change to these requirements must also be reported. The term of the Work Permit must not exceed two years (as opposed to three years under the preceding legislation). Upon expiry of his or her existing Work Permit, the Work Permit holder should apply for a new Work Permit (instead of applying for an extension as with the preceding legislation). An expatriate employee who is subject to Work Permit requirements and who is working in Vietnam without a Work Permit may be expelled from Vietnam. The government also issued Decree No. 182/2013/ND-CP on 14 November, which provides for new regional minimum salaries of employees, including employees of foreign invested enterprises.

Read more

 

 

Europe

-DATA PROTECTION & PRIVACY-

Reshaping Global Privacy Webinar - Key Takeaways
Following the EU Parliament vote adopting the amendments to the draft EU General Data Protection Regulation, DataGuidance organised a webinar entitled Reshaping Global Privacy: The EU Parliament Vote, which took place on 31 October 2013. Some of the key takeaways included: Higher sanctions are on the horizon; The role of the DPO will be key; Safe Harbor likely to stay; Framework to be revised; and Wait for trilogue to ascertain the fate of BSPRs. Christopher Wolf, Partner at Hogan Lovells, explained that while the extent of penalties has been outlined, there remains a lack of guidance as to mitigating factors or discretion for enforcement. Emmanuelle Bartoli, Group Chief Legal Counsel, Data Privacy and Security at Atos, spoke on the central role of the DPO, despite little definition in the draft Regulation. Both Bartoli and Wolf discussed the hope that Binding Safe Processor Rules, not explicitly mentioned in the Parliament's amendments, will re-emerge in the trilogue discussions with the Council and the Commission. "If the BCR for processors idea is extinguished you are losing an important mechanism for international trade and for another way to protect data as it used and shared in the information society ecosystem,” said Wolf. “I hope that greater rationality will prevail in trilogue."

Read more

Where Next for the Draft Data Protection Regulation?
The EU’s Work on Data Protection Reform continues following the vote of the EU Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) to adopt compromise amendments. The 104 compromise amendments represent a consolidation of proposals submitted by various European Parliament committees. The approval of these amendments represents a significant milestone in the progress of the legislation, the amendments now framing Parliament’s negotiating position with the Council of the European Union and the European Commission. As part of the LIBE vote, the Rapporteurs guiding the draft Data Protection Regulation and the separate directive for the law enforcement sector through the Parliament, Members of European Parliament Mr. Albrecht and Mr. Droutsas, have also been given a mandate to begin negotiations with the Council under the trilogue procedure. Use of the trilogue procedure enables the institutions to negotiate informally upon legislation subject to the EU ordinary legislative procedure, with a view to more legislation being finalized at the first and second reading stages. Despite progress in Parliament and the assumed start of trilogue negotiations, it remains unclear how quickly the reform can complete the EU’s ordinary legislative procedure. The next meeting of the Council’s JHA committee is scheduled for 6 December 2013, when more progress is expected to be made towards adopting a negotiating position, known as a “common approach.”

Read more

Data Protection Rules Could Cost Firms £75,000 Each Year
New data protection legislation being discussed by Europe's Justice and Home Affairs Ministers has the potential to place an undue financial burden on small firms, says the Federation of Small Businesses (FSB) and the British Bankers' Association (BBA). Proposals under discussion would require small firms that hold details of 5,000 customers or more to employ a Data Protection Officer at an estimated cost of £64,000 per year, conduct a data protection impact assessment costing £11,200 per year and carry out a compliance review every two years. FSB research found that one in five (19%) of small firms already consider data protection to be the most burdensome regulation to comply with. The 1995 EU Data Protection Directive established a framework for data protection amongst EU Member States. However, since 1995, there have been numerous technological developments, notably the increased use of personal computers and handheld devices; the rapid expansion of the Internet; and the emergence of social media. The EU Commission believes that the law should be updated to reflect these changes and to provide more harmonisation across EU Member States. "These new rules have the potential to place real burdens on businesses across Europe,” said Irene Graham, Managing Director of Business Finance, BBA. “We would urge EU politicians to reconsider their approach to ensure small businesses are not unduly affected."

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EU Gives U.S. Safe Harbor Another Chance
The EU Commission has reviewed the working of the U.S. Safe Harbor programme on transfers of personal data from the European Economic Area to the U.S., and says that it will wait until summer 2014 to see whether it will suspend, modify or even revoke its Safe Harbor decision based on the progress that the U.S. has made by then. Data Protection Authorities in the EU as well as the Commission have had concerns over the scheme due to lack of enforcement, general formulation of the principles and the high reliance on self-certification. Since 2009, the U.S. Federal Trade Commission has brought 10 enforcement actions against companies based on Safe Harbor violations. Most worryingly, there have been false claims of Safe Harbor adherence. The Commission says that about 10% of companies claiming membership in the Safe Harbor are not listed by the U.S. Department of Commerce as current members of the scheme. The Department of Commerce says that it has now started to contact Safe Harbor participants one month prior to their certification renewal date to alert them. It has also made it mandatory for Safe Harbor participants to make their privacy policy readily available on their public website.Self-certified companies should publish privacy conditions of any contracts they conclude with subcontractors and any false claims should continue to be investigated.

Read more

EU, U.S. Officials Indicate Potential Privacy Agreement at Data Protection Congress
The keynote stage at the IAPP Data Protection Congress in Brussels became a diplomatic back and forth as Constantijn van Oranje-Nassau, the Head of Cabinet of Vice-President of the European Commission Commissioner for the Digital Agenda Neelie Kroes, first delivered the European Commission’s view of data protection and then was followed by an address from U.S. Federal Trade Commissioner Julie Brill. Both emphasized the need to encourage innovation and the threats to privacy posed by new Big Data business models. Both expressed hopefulness and optimism that the U.S. and the EU would find a way to work together on data transfer regulations. Reading between the lines, it was easy to see a desire from both parties to preserve data transfer mechanisms like Safe Harbor in order to set up a good old-fashioned battle between their respective industries looking to turn a profit in the online space. “We need to insure that new technologies address privacy, though, without the law being a straightjacket, said Oranje-Nassau. “Mastering Big Data means mastering privacy.” Brill’s speech echoed the commission’s language as she discussed the future of the U.S.-EU transatlantic relationship. “As we contemplate the course, we have to decide whether we, regulators and industry, will be able to work together to both protect consumer privacy and spur innovation.”

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The EU and APEC: A Roadmap for Global Interoperability?
The steady stream of media reports on the privacy differences between the EU and the U.S. would have you believe that cross-border data sharing is nothing but storm clouds over the Atlantic. However, the forecast for the Pacific appears to be fair weather and blue skies, and the data protection authorities (DPAs) in Brussels are taking note. As global data flows are accelerating, data privacy laws around the world are proliferating. For example, of the 21 economies that comprise the Asia-Pacific Economic Cooperation forum (APEC), nearly a dozen have introduced or updated laws that protect personal information privacy since 2010. APEC represents 40% of the world’s population, 54% of the world’s GDP and 40% of world trade—and growing fast. In the last 10 years, APEC has established a regional privacy framework that maximizes privacy protection while facilitating cross-border information flows. APEC uses the Cross-Border Privacy Rules (CBPR) system, a set of enforceable rules developed by an organization based on APEC Privacy Principles. While APEC has the CBPR system, the EU has been experiencing an increase in the use of Binding Corporate Rules (BCRs). The synergies of the CBPR-BCR systems have the potential to become the brightest spot on the horizon for finding interoperability among two enormous economic regions. From a business standpoint, compatibility between CBPR and BCR could offer an effective approach to developing a solution to sharing cross-border data sharing globally.

Read more

 

Finland

-ALCOHOL & DRUG SCREENING-

International Solutions: Four Laws that Regulate Drug Testing in Finland
Unlike many European nations, Finland has mandatory national laws relative to drug testing. That means there are actual rules and regulations that must be followed in this country as opposed to a set of “best practice guidelines” as in the case in others countries in Europe. There are four laws in Finland that together regulate drug testing: 1. Act on the Protection of Privacy in Working Life: As the name suggests, this law aims to protect individual privacy in the workplace. It includes many requirements from direct necessity to employee relationship before processing personal data, employee consent, informing individuals for a drug testing requirement and drug test certificates. 2. Occupational Health Care Act: This law requires employers to provide health care to employees. It also regulates a few items concerning narcotics testing. 3. Act of Cooperating within Undertakings: This law regulates how company policies are drafted and implemented. It applies to the creation of an action programme on substance abuse prevention (as required in the Occupational Health Care Act) and the work tasks outlined in the Act on the Protection of Privacy in the Working Life. 4. Narcotics Act: In addition to outlining measures to prevent the illegal drug trade, this law provides many definitions that are referred to by the laws above. It is important to follow the trail that leads from this Act to other legal documents in understanding certain terms.

Read more

 

Germany

-DATA PROTECTION & PRIVACY-

Germany Appoints a New Federal DP Commissioner
Andrea Vosshoff is the new Federal Data Protection Commissioner after being elected by the Bundestag with a majority of 403 votes. She is a CDU (Christian Democratic Union) politician, who sat in the Bundestag, the lower house of the legislature, from 1998 until September 2013. Peter Schaar retired after 10 years in the post. The Bundestag made its decision based on the recommendation of the new coalition CDU/CSU/SPD government, which was formed on 17 December and proposed Andrea Vosshoff at its first cabinet meeting. Andrea Vosshoff is not well known in the data protection community unlike Peter Schaar, who was formerly the Data Protection Commissioner for Hamburg. However, it is common practice in many countries to appoint a person to head a national Data Protection Authority who is new to the subject. The Federal Commissioner has responsibility for the federal public sector and telecommunications companies. Enforcement of the law for the private sector is carried out by the 16 Land (state) Data Protection Authorities.

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Netherlands

-DATA PROTECTION & PRIVACY-

Dutch DPA Gets Power to Fine
Dutch Data Protection Authority (CBP) Chairman Jacob Kohnstamm told the audience of the National Data Protection and Privacy Conference in Rotterdam that his office will get the power to fine organizations in both the public and the private-sector for violations of the Dutch Personal Data Protection Act (WBP). The fine could be as high as 780,000 Euros, or about U.S. $1 million, per violation. Earlier, Secretary of State Fred Teeven of the Ministry of Security and Justice had informed Parliament that he was about to send a bill to the cabinet giving the Dutch DPA the power to issue “steep fines.” The bill, which was approved by the Dutch Cabinet December 6, is a change to another bill currently being discussed in the Second Chamber of the Dutch Parliament. The latter bill introduces a general data breach notification obligation in The Netherlands and gives the Dutch DPA the power to fine data controllers only for failure to notify the DPA about a breach. As a result of the recent change, the data breach bill is expected to be put on hold in order to allow the Council of State, the official advisory body to the cabinet and Parliament, to advise on the new fining powers. As the council’s advice is not expected before March or April next year, both the obligation to notify data breaches and the fining power are likely to come into force only on January 1, 2015.

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Poland

-DATA PROTECTION & PRIVACY-

Draft Amendments Reform DPO Functions
The Ministry of Economy published - on 16 October 2013 - draft amendments to the Data Protection Act 1997 (the Act). The amendments offer a simplified registration procedure if an organisation appoints an Administrator of Information Security, which is similar to a Data Protection Officer (DPO). However, organisations choosing to appoint a DPO will be subject to a 'significant extension of obligations.' Under the current law, while appointing a DPO is optional, notifying the GIODO of all data filing systems containing personal data and registering all data filing systems containing sensitive personal data with the GIODO is mandatory. Under the proposed amendments, controllers who choose to appoint a DPO only have to keep an internal, publicly available, record of data filing systems containing personal data. They must still register any systems containing sensitive personal data. It seems that the draft may in practice introduce additional burdens for companies, which decide to appoint a DPO. The draft amendments also introduce several new obligations for data controllers concerning DPOs. Public consultations on the amendment are expected to begin on 12 November 2013.

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Spain

-EMPLOYMENT OUTLOOK-

Job Numbers Jump +40% in November
Online job board InfoJobs recorded a +39.8% increase in the number of jobs posted online during November 2013, compared with the same month last year. In November 2013, there were 93,261 jobs posted online, equating to 26,561 more job advertisements than last year. The number of young people seeking employment in November rose by +12.5% compared with a year ago. There were 1,594 people between the ages of 16 and 19 in search of employment last month. Catalonia and Madrid were the regions with the greatest number of jobseekers who would be willing to relocate in order to secure a job. Castilla-La Mancha was the region with the highest number of jobseekers (60.8) actively seeking work outside of their region. Retail and Sales was the sector that reported the biggest jump in job adverts on InfoJobs compared with a year ago, the additional 22,714 jobs equated to 44.4% of all jobs posted on the job board last month. This was followed by IT and Telecommunications (15.4%) and Customer Services (10.6%).

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United Kingdom 2

-BACKGROUND SCREENING NEWS-

What Happened to Duty of Care to the Vulnerable?
It is high time for the government and HR managers to take a much harder line on recruitment in health and social care. There is a sizeable minority of care workers who should never be allowed near vulnerable people, as highlighted by recent high profile cases of shoddy care at nursing homes and abused children. And while they are not suited to care for the vulnerable, they would not show up in a Disclosure and Barring Services (DBS) check. The problem stems from a risk-averse recruitment culture, in which reference checks are not properly carried out, allowing unsuitable individuals to enter the sector. DBS checks are effectively serving as a comfort blanket for those with responsibility at policy level to ensure the protection of the vulnerable since they are no longer advising independent reference checking. An increasing number of HR professionals in care provider organisations now don't give reference information at all, favouring the risk-averse approach of many commercial organisations in giving dates of employment and job title only. Some organisations who get only these standard references back will appoint regardless, ignoring the risk. Those HR practitioners who won't give full reference information are, therefore, potentially denying their organisations' best performers the right to further their careers. Recruiters should make sure to exercise rigour when choosing career workers. Failure to act will lead to more tragedies for the most vulnerable people in society.

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Is Social Media Being Used to Find and Reject Candidates?
A recent survey by recruitment firm, Oilandgaspeople.com, has revealed that social media is being used extensively by some recruiters to both find and reject suitable candidates. The survey of more than 7,000 recruitment companies, HR managers and recruiters in the UK found that 82% of employers have looked up potential candidates on social media sites, while some 64% have rejected a job application after viewing a candidate’s social media profile. According to the findings, 88% of recruiters used LinkedIn for candidate recruitment, with 25% using Facebook and 8% using Twitter. A third of recruiters said they found candidates on industry-based job boards, but traditional print ad job advertising had fallen in popularity, with 63% of recruiters saying social media was now considered to be more effective. “Social media is now a powerful recruitment tool for getting the right person in position faster and cheaper than traditional forms of advertising,” said Kevin Forbes, CEO of Oilandgaspeople.com. The survey also revealed that 77% of recruiters felt that social media provided them with better access to candidates and 41% said it gave them better insight into whether candidates were suitable.

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-DATA PROTECTION & PRIVACY-

ICO Issues Data Protection Warning to Employers
The Information Commissioner's Office (ICO) has issued a warning to employers about the importance of making sure temporary staff - who regularly handle personal information - receive adequate data protection training. It states that the problem has been highlighted following four data breaches at the Great Ormond Street Hospital for Children NHS Foundation Trust. The ICO's investigation found that three of the incidents related to the work of temporary staff who had not received adequate data protection training, despite their role routinely involving the handling of personal information. In addition, it reported that the trust had no measures to check whether letters were being addressed to the correct recipient before sending.

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-EMPLOYMENT OUTLOOK-

74% of Recruiters Declare 2013 Better than 2012
UK recruiters are optimistic about the future of the industry as we head into 2014, with 74% declaring that this year has been better than 2012, and 18% stating that business has remained on an even keel. Mercury xRM software developer and recruitment expert Crimson Limited, polled 88 businesses from its recruitment partner network on their business levels for 2013 and found that three quarters of recruiters in the UK were celebrating a good year for business, with just two percent of recruiters stating that 2013 had been a poor year. Eleven percent described 2013 as a ‘fantastic’ year for business. These figures highlight the optimism within the recruitment industry at a time when the wider UK economy is starting to show signs of recovery and growth. In fact, the British economy is rising faster than any other major advanced economy in the world and 400,000 jobs are expected to be created in the UK between now and the end of the financial year in March 2014. The jobs market in Scotland is particularly booming with vacancy figures back to the number recorded at the pre-recession level. This upward trend in job creation is creating tougher competition for the highest quality staff and turning businesses towards specialist recruitment agencies, best placed to fill highly skilled vacancies.

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-CRIMINAL RECORDS-

Full UK Court Listings Could be Online by April
Advance listings of hearings in all criminal courts could be available online from next year, under an amendment proposed to the Criminal Procedure Rule Committee. At present, most court lists are distributed externally only to established newspapers under the so-called ‘press protocol’. However, the Ministry of Justice’s crime and justice sector transparency panel, set up in 2011 to encourage wider access to data, has urged open publication. The panel heard that the Criminal Procedure Rule Committee is planning to enable publication as soon as courtroom IT systems are up to the task. A paper circulated to the panel reveals that the committee intends to amend rule 5.8 ‘to authorise and require the publication by Her Majesty’s Courts & Tribunals Service of basic details of cases listed to be heard in public in the criminal courts.’ Details, including the names and addresses of defendants, the nature of charges and whether reporting restrictions are likely to be imposed, would be available online for a limited period, expected to be two days. If approved by the rule committee, the amendments could be signed in December and come into force next April. However, a recent panel meeting heard that, because of the need to upgrade court IT systems, online results might not be available for at least a year after that.

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North America

Canada 2

-BACKGROUND SCREENING NEWS-

B.C. Criminal Record Checks Spur Privacy Concerns
Concerns about the amount and type of personal information disclosed in police record checks have prompted an investigation by B.C.'s privacy commissioner. Elizabeth Denham says citizens and civil society groups have raised questions about the scope and sensitivity of personal information that's accessed and disclosed to police, often for employment-screening purposes. Denham says thousands of record checks are processed every year by municipal police forces and the RCMP but the relevance of the information collected in the public and private sector needs to be scrutinized. While a criminal record check is a report of someone's prior convictions, penalties or outstanding charges pulled from a national police database, such information can also reveal details that have not been proven in court. She says some of the issues include a person's mental health, investigations that did not result in charges and charges that did not end up in a conviction. Last year, the commissioner issued a report saying the B.C. government did too many criminal record checks for employment-related purposes in March 2011 and that while some were valuable for people working with children, for example, others were an invasion of privacy.

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Frequently Asked Questions About Employee Background Checks
This article covers some of the most common questions asked about employee background checks in Canada. Question topics include: Credit Checks, Drug and Alcohol Testing, Medical Examinations and Criminal Background Checks. Here are a few of the questions and answers: Is an employer allowed to perform a credit check on an employee or prospective employee? An employer may perform a credit check on an employee or prospective employee if the employer intends to use the information for employment purposes. Such purposes include considering new hires, granting promotions, reassigning employment duties or determining whether to retain someone as an employee. Who can be subjected to a drug/alcohol test? Any employee may be subjected to a drug/alcohol test, however, drug and alcohol testing that has no demonstrable relationship to job safety and performance has been found to be a violation of employee rights. Can an employer decline to hire a prospective employee or terminate an employee based on the results of the criminal background check? A decision not to hire someone based solely on the fact that he or she has a criminal record is discriminatory under the Code. However, an employer would not be discriminating if it makes the decision regarding employment based on a record of offence that closely relates to an important quality of the job. If a person has received a pardon for the crime that they committed, an employer cannot refuse to hire that person because of that crime.

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-DATA PROTECTION & PRIVACY-

Alberta Privacy Legislation Shot Down - Will Also Affect BC
The Alberta Personal Information Protection Act has been declared unconstitutional by the Supreme Court of Canada. The sweeping decision was prompted by union video surveillance of people crossing a picket line. Because PIPA does not have any exemption to allow for a union to advance its interests in a labour dispute, it was held to be an unreasonable restriction on the union's freedom of expression guaranteed by the Charter of Rights. Alberta will have 12 months to make changes to the law before the declaration of invalidity takes effect.

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Privacy in the Workplace: A New Tort is Born
Over the last two years, courts have repeatedly addressed a new form of workplace violation. With these decisions they have begun transforming the face of privacy law in the workplace. With technology being a tool at the forefront of many workplaces, personal information has become vulnerable data requiring protection. In two recent cases, the Ontario Superior Court of Justice and the Court of Appeal for Ontario both recognized this vulnerability along with the existence of the tort of invasion of privacy in Ontario. This new tort was based upon an actionable “intrusion upon seclusion”. The Court defined this intentional tort as being one where the intrusion into the seclusion of another person’s “private affairs or concerns” would be found as “highly offensive to a reasonable person”. In terms of changes to employment law, these decisions added the welcomed caveat to an employer’s obligation to protect its employees’ privacy in the workplace. For employers, this change means that a breach of this obligation could potentially expose them to punitive damages up to $20,000. For employees, it means among other things, that they can have a “reasonable expectation of privacy” in their workplace while using technological tools provided by their employers in the course of their employment.

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Wyant Examining Privacy Gap Options: Employee Records a Key Concern
Justice Minister Gord Wyant is looking for ways to close the so-called privacy gap left by federal laws. "We, like Ontario and the eastern provinces, have relied on the federal legislation with respect to privacy matters in the private sector," said Wyant. He said there is a concern about employee records that are not covered by the federal legislation. “We've consolidated all the labour legislation into one piece, and we think that there's a possibility of perhaps bringing some regulations forward under the employment act to cover off that issue," continued Wyant. He said another possibility is to revisit the province's freedom of information and privacy laws (FOIP), which he acknowledged are outdated. Privacy Commissioner Gary Dickson said the issue of employee records is only part of the gap in the legislation related to the private sector, and he isn't confident regulatory changes could address all of his concerns. Although Wyant said he isn't sure taking legislation from other provinces is the right answer, Dickson said the other western provinces have set good precedents with their laws. "I think there's a need to overhaul FOIP; there's a need to overhaul the local authority FOIP act, there's a need to overhaul HIPA and I think we need a personal information protection law just like B.C. and Alberta have had since 2004…Why would we go a different path?" Dickson said.

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Manitoba’s New Privacy Law has Implications for Cross-Border Employers
The Canadian Province of Manitoba has enacted privacy legislation governing the collection, use and dissemination of personal information, including employee personal information. With the legislation, Manitoba joins the other Canadian Provinces of Quebec, Alberta, and British Columbia in providing special protection for employee personal data. Private-sector employers with operations in Manitoba should ensure their data collection and protection are in compliance with the Manitoba Personal Information Protection and Identity Theft Protection Act (PIPITPA), or risk fines of up to $100,000. Under PIPITPA, an organization must take care to ensure that “personal information,” defined as information about an identifiable individual, in its custody or under its control, may only be collected, used or disclosed with the permission of that individual. This includes personal information related to employees. To that end, employers should designate a compliance officer to oversee the collection, use and dissemination of personal data, and must establish policies and procedures governing the employer’s handling of employee personal data. PIPITPA is still awaiting proclamation, which sets the date the legislation will come into force. Although no effective date has been set yet, employers are advised to begin planning for PIPITA as soon as possible.

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-CRIMINAL RECORDS-

Criminal Record Checks Available Free to Not-for-profit Organizations, Starting November 30
Starting November 30, 2013, British Columbia's government will waive the $20 criminal record check fee for not-for-profit organizations that participate in a program that also offers free expert advice. Under BC law, employers in the volunteer and not-for-profit sector must obtain criminal record checks for job and volunteer candidates if they will work with children or vulnerable adults. The province's criminal record check program aims to alleviate the financial burden associated with the law. The current fee might seem like a small amount, but with mandatory checks for multiple job and volunteer candidates, it can quickly add up. For the program to continue to pay for itself, the fee for other organizations will increase to $28. In addition, the program will only waive the fee for provincial criminal record checks. Employers will continue to pay for local or RCMP checks. Recent amendments to the Criminal Records Review Act also create "portable criminal record checks." Completed criminal record checks will be stored for five years, during which time a volunteer or job candidate may permit an employer to access the document. In theory, this will reduce redundant checks and save employers in the not-for-profit sector money when they recruit volunteers and employees. Criminal record checks that indicate a risk cannot be portable. ??

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United States

-DATA PROTECTION & PRIVACY-

The Plain Truth About Safe Harbor
The stance adopted by the European Commission in the report on the functioning of Safe Harbor was probably one of the worst kept secrets of the privacy world. It was patently obvious to anyone close enough to the controversy around the ability of Safe Harbor to live up to the expectations of EU policymakers and regulators that the European Commission would be critical about it but would stop short of delivering a fatal blow to the scheme. So as expected, the commission's report unequivocally reveals some deficiencies that are seen as unfair for both U.S. companies, which properly apply the scheme and European companies that simply comply with EU data protection law. The toughest criticism is directed at the simple fact that, because the self-certification process does not involve any kind of regulatory scrutiny, about 10% of companies claiming to meet the Safe Harbor standards are actually making false claims. A more veiled criticism is directed to the enforcement mechanisms, which are seen as a little too lame by the commission. This translates into a very simple commercial point: Where a European company competes with a U.S. company operating under Safe Harbor, but in practice not applying its principles, the European company is at a competitive disadvantage in relation to that U.S. company. In the short term, this means that Safe Harbor will survive pretty much unscathed. In the longer term, this may even be the beginning of real interoperability of privacy approaches.

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- LEGAL ISSUES -

Happy Birthday to the FACTA! The Often Forgotten Law that Imposes Obligations and Provides Helpful Exceptions for Employer Background Checks and Workplace Investigations
Employers who use a third party to conduct a background check on an applicant or employee for employment purposes must comply with the FCRA. But what many employers may have forgotten, is that the Fair and Accurate Credit Transactions Act (FACTA) also imposes upon them some obligations when conducting a background investigation. The FACTA is a 10-year-old law enacted by Congress to combat identity theft. The FACTA amended the FCRA by fixing a problem that required employers who retain a third party to investigate workplace misconduct to comply with the FCRA’s four-step process: the disclosure, authorization, pre-adverse notice and adverse notice procedures. Employers who engage a third party to investigate workplace misconduct no longer have to provide advance notice to the employees under investigation, obtain their prior consent, or disclose the contents of the investigator’s report prior to taking adverse action based on the report. However, employers still have some obligations to employees when they have an outside person or agency do an investigation under the FACTA. They must provide some summary information, but they do not have to provide even this information unless and until they take an adverse action. Remember, the FACTA is the exception, not the rule. Given the increase in FCRA class lawsuits, employers that use background checks for employment purposes must ensure they are taking proper steps to ensure compliance with the applicable provisions of the FCRA.

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Lawsuit Raises FCRA Fears
A class-action lawsuit against Disney serves as a stark reminder that employers better follow the letter of the Fair Credit Reporting Act when it comes to notifying job candidates or employees about adverse actions against them due to something that showed up in a background-screening report.

With an increasing number of employers facing lawsuits under the Fair Credit Reporting Act based on actions taken -- or not taken -- during their recruiting and hiring procedures, experts and employment attorneys are cautioning them to know the letter of this law before deciding on any job candidate.

More importantly, if they're going to decide not to hire someone because of what turned up in a background check, they'd better cross their t's and dot their i's when it comes to notifying the applicant about the decision that's about to be made.

The latest to be pulled into the fray, Disney, is accused of knowingly violating the FCRA by failing to provide job applicants and employees with adverse-action notices and copies of background reports prior to negative decisions being made.

In the class-action lawsuit, Culberson v. The Walt Disney Company, Robert L. Culberson claims Disney illegally barred him from employment by failing to provide him with the notice -- required by the FCRA when an adverse-employment decision is based on any portion of a background check.

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State "Ban the Box" Legislation Gains Momentum
The “ban the box” movement continues to sweep through state legislatures. Recent legislation in two states applies “ban the box” prohibitions to private employers in the state.

On December 1, a new North Carolina law went into effect that prohibits employers from inquiring about arrests, charges or convictions that have been expunged.  This prohibition applies to requests for information on applications and during interviews with applicants.  In addition, applicants are not required to disclose expunged arrests, charges or convictions. .  
 
On January 1, 2014, a new Minnesota law goes into effect that prohibits employers from inquiring into, requiring disclosure of or considering the criminal record or history of an applicant until the applicant has been selected for an interview or, if there is no interview, until after a conditional offer of employment has been made. 

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Federal Motor Carrier Safety Administration (FMCSA) To Change Violation Challenge Process In PSP, CSA
The way Federal Motor Carrier Safety Administration (FMCSA) reports driver violations to the mega database that feeds data to the Pre-Employment Screening Program and Comprehensive, Safety, Accountability enforcement program is changing. The FMCSA published a notice on Dec. 2nd that outlines the way violations will be reported to the Motor Carrier Management Information System (MCMIS).

That database supplies the roadside inspection and violation data to the PSP and the CSA program. The PSP program provides listings of all driver roadside inspection violations and crash reports to prospective employers. CSA scores and weights violations to determine motor carrier and driver compliance in various categories. The motor carrier rankings are public, but the driver ratings are used internally at FMCSA for enforcement only.

With the announced changes, challenged violations that have a corresponding citation that is either dismissed or given a “not guilty” verdict will have the challenged violation removed. Citations that are dismissed by a court but have fines or court fees assessed will be reported as convictions to the system. 

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Legislation Introduced to Prohibit Employers From Requiring Credit Report Disclosure
U.S. Senator Elizabeth Warren (D-Mass.) introduced the Equal Employment for All Act with several other Senators. The legislation would prohibit employers from requiring potential employees to disclose their credit history as part of the job application process. It was previously thought that credit history may provide insight into an individual's character, but research has shown that an individual's credit rating has little to no correlation with his or her ability to be successful in the workplace.  "A bad credit rating is far more often the result of unexpected medical costs, unemployment, economic downturns, or other bad breaks than it is a reflection on an individual's character or abilities," Senator Warren said.  "Families have not fully recovered from the 2008 financial crisis, and too many Americans are still searching for jobs. This is about basic fairness -- let people compete on the merits, not on whether they already have enough money to pay all their bills."

A study from the Federal Trade Commission earlier this year suggested that errors in credit reports are common and, in many cases, have been difficult to correct.  "It makes no sense to make it harder for people to get jobs because of a system of credit reporting that has no correlation with job performance and that can be riddled with inaccuracies," Warren said.

Senator Warren's bill is based on H.R. 645, which was introduced by Congressman Steve Cohen (TN-9) in 2011.

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Text of the Legislation is Available Here

Fact Sheet is Available Here

 

Is Mickey in Trouble? Disney Defends its Background Screening Policies
The company known for their signature character, Mickey Mouse, is defending a class action claim based on questions about its background screening policies. A lawsuit was filed against the Walt Disney Co. and the complaint alleges that Disney’s policy for notifying applicants about background checks has violated the FCRA. The plaintiff is alleging that Disney failed to provide notice of adverse action, a process required by the FCRA when an adverse employment decision is based on any portion of a background check pursuant to 15 USC 1681b(b)(3) and 15 USC 1681m(a). The plaintiff’s background check showed a criminal conviction that had later been expunged. The plaintiff’s argument is that Disney did not give him the opportunity to clear up the inaccuracy of the report. Instead, the company took action and made the decision not to hire based on inaccurate information that the Plaintiff never had the opportunity to cure. Employers should make sure to have a policy for adverse action procedures that includes both pre-adverse and adverse action notifications, and that all hiring managers under-stand the need to follow those policies with a uniform process. The best practice is to reasonably evaluate each decision, and when you can, give the job applicant the benefit of notice. By doing so, you might avoid being the next class action defendant.

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Walt Disney Company and First Choice Background Screening are Subjects of FCRA Class Action Claims
Two class action complaints were filed recently in the Superior Court of California County of Los Angeles court alleging violations of the FCRA. The cases are Culberson v. The Walt Disney Company and Ruffing v. First Choice Background Screening. The claim against Disney is that they knowingly violated the FCRA by failing to provide job applicants and employees with pre-adverse and adverse action notices and a copy of their back-ground check report. First Choice Background Screening is charged with multiple FCRA violations, including not using reasonable procedures to assure maximum possibly accuracy of the reports as well as strict procedures regarding the reporting of public record information. Both cases involve employment screening and should serve as a reminder to employers and consumer reporting agencies (CRA) to be mindful of their obligations under the FCRA. For CRAs it is important to consider the disclosure and authorization template you provide your end-users to ensure that it does not contain additional verbiage that could be challenged by plaintiff’s counsel as a notice which is not a “clear and conspicuous disclosure”. For employers, whether it is handled by your CRA or internally, when using background check reports for employment screening purposes you must conduct the pre-adverse and adverse action steps, as applicable, when using information from such a report prior to taking any adverse action against the job applicant.

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The Background Backlash Continues – Texas Sues the EEOC Over its Criminal Background Guidance
For the second time in less than six months, the EEOC finds itself on the wrong side of a lawsuit. The State of Texas has sued the EEOC in the Northern District of Texas seeking declaratory and injunctive relief against the EEOC for issuing its 2012 arrest and conviction guidance (the 2012 Guidance). In short, the Texas complaint argues that the EEOC did not have the authority to issue this rule. The lawsuit also claims that the EEOC’s position that Title VII trumps conflicting state laws violates its state sovereignty. As it stands, Texas state law allows for blanket, no-felons policies at certain state agencies. Through this lawsuit, Texas, in its role as an employer, attempts to preemptively force the EEOC to defend its 2012 Guidance. The 2012 Guidance fails to specifically inform employers what they can do when considering felons for employment, but rather merely outlines what the Commission believes that employers cannot do. Importantly, this lawsuit follows a pointed letter from nine Attorneys General stating that the 2012 Guidance is “misguided and a quintessential example of gross federal overreach” and attempts in Congress to prohibit the EEOC from spending funds enforcing the 2012 Guidance. The implications of cases like these will likely clarify the bounds of how courts will view the EEOC’s interpretation of Title VII in this area.

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South America

Columbia

-DATA PROTECTION & PRIVACY-

Employers' Obligations to Protect Workers' Information
In order to develop a fundamental constitutional right, the Habeas Data Law (1581/2012) was passed almost one year ago. The law develops and guarantees a person's right to know, update and correct the information held about him or her in a database. However, the interpretation of the regulation is still confusing for many sectors that are affected by its provisions and its implementation has been slowed down has a result. Although the Constitutional Court carried out a study into the draft law, the new law has had no other formal legal analysis, thus making it hard for employers to know whether it affects them. To ensure the guarantee of this constitutional right and to reinforce compliance with the rule, the new law includes an oversight and control mechanism. It has created the Data Protection Department within the Industry and Commerce Superintendence, which has the power to monitor employers' databases. It also has the power to punish an employer, which fails to comply with the law with a fine of up to 2,000 times the statutory monthly minimum wage (Ps1.179 billion or $612,785). Therefore, parties which are responsible for the treatment of employee data should be aware of the new law and should include in internal labour policies mechanisms allowing information to flow between employers and employees. They should also allow efficient access to and consultation of such data and implement security policies that prevent the improper use of information and respect employees' rights.

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Uruguay

-ALCOHOL & DRUG SCREENING-

Uruguay Legalizes Marijuana!
The Uruguayan Senate voted to approve a government-sponsored bill to legalize marijuana commerce. The Senate vote was the final vote needed for the bill to pass; all amendments to the bill were defeated, so it now goes to the desk of President Jose Mujica, who supports it. Once Mujica signs the bill into law, it will go into effect in 120 days. Uruguay now becomes the first signatory to the 1961 United Nations Single Convention on Narcotic Drugs to break with the UN on the issue of marijuana legalization. The Netherlands has turned a blind eye to small-scale retail sales for decades now, but such acts remain formally illegal so the Dutch can remain in formal compliance with the treaty. Under the bill, the Uruguayan government will regulate the importation, cultivation, harvesting, distribution, and sale of marijuana. Would-be pot smokers will have to register with the government in order to grow their own (up to six plants), grow it collectively in a club, or buy up to 40 grams a month at a pharmacy. Opposition didn't just come from conservative lawmakers. Some marijuana users aren't very keen on the idea of having to register with the state in order to legally obtain their drug of choice. But President Mujica and the Broad Front argued that the bill would weaken drug traffickers and help reduce the estimated $80 million a year the country spends fighting drugs and imprisoning traffickers.

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