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Verifile International Newsletter Issue #4

19 May 2014

Welcome to our May edition of the International Newsletter 2014 which we hope you find helpful in keeping up to date. You may be interested to know that last Friday, 16th May, we celebrated Verifile’s 10th anniversary. We’d like to thank you as always for being such a great client to work with and we hope to continue working with you for at least another 10 years. Here is a group photo of us all:

Verifile 10Th Birthday

In this issue of the International Newsletter:

WORLDWIDE NEWS

- A New Handy Guide to Global DPAs

- Global Hiring Levels

AFRICA & MIDDLE EAST  
ISRAEL

- Should Employee’s Criminal Past be Taken into Consideration in Decision to Hire?

ASIA PACIFIC  
AUSTRALIA

 - Australian Privacy Act Changes Smell SOXish

- A Brief Guide to the ICT Security Controls Required by the AAP

 - Number of NSW Police with Criminal Records has Doubled Over Last Five Years

 - Employers to Receive More Access to Cross-Tasman Criminal History Checks

CHINA

  - China to Publish All Court Judgments, with Some Privacy Protections
- Data Rules to Introduce First Personal Health Data Protection Framework

HONG KONG

- Hong Kong Attracts Companies but Talent in Short Supply 

MALAYSIA

 - SSMI Effective in Screening Background of Candidates

NEW ZEALAND

 - New Zealand Data Protection Authority’s Powers Held Back by Government Veto

- Lie Detector Tests for Job Applicants

EUROPE

 - EU Calls for Much Bigger Fines for Data Breaches

- LIBE Draft Report Calls for ‘Immediate Suspension’ of Safe Harbor

- New Data Protection Handbook Outlines Alternative Test

FRANCE

 - CNIL Adds New Consent Requirement for Use of Credit Card Data

- CNIL Guidance for Multinationals Seeking to Comply with SOX & Dodd-Frank

GERMANY

 - German Consumer Organisations to be Empowered to Sue Businesses

THE NETHERLANDS

 - Sixty People Lose Childcare Jobs After Screening

UKRAIN

 - New Notification Rules Introduced for ‘Risky Data’

UNITED KINGDOM

 - UK Financial Services Sector Bouncing Back

- Recruitment Intentions Among LMO Employers Fall to 54%

- Student Visa System ‘Abused’ to Gain Illegal Entry to UK

 - Changes to the civil penalty scheme to prevent illegal working

 - Changes to legal definition of ‘work with children’

UNITED STATES

 - Health Care Worker Drug Testing Bill Advances in New Hampshire

 - Is FCRA’s Prohibition on CRAs from Disclosing Truthful Public Information Constitutional? The Government to Defend its Position

 - San Francisco's Board of Supervisors "Bans The Box" and Further Complicates Criminal History Checks by the City's Employers

 - Tommy Wells' 'Ban the Box' Bill Gets Strong Support

 - Whole Foods Sued Over Worker Background-Check Procedure

 - Background Check Forms Face Increased Scrutiny in Federal Court

 - More Restrictions on Criminal Background Checks

 - Class Action Lawsuit Challenges Legality of Retail Theft Databases in California for Background Checks

 - Proposal Would Force All Kansas Teachers To Be Fingerprinted

 - Colorado Supreme Court to review “lawful” use of medical marijuana

 - Proposed Bill Would Establish Standards for National Data Security

 - Scrutiny of Predictive Scoring Products is on The FTC's Agenina In 2014

 - Two Court Decisions Say FCRA Disclosures Cannot Contain Liability Waivers

NORTH AMERICA  
CANADA

 - Mid Employment Checks - Legal but Complicated

- Ontario Introduces New Immigration Legislation

MEXICO

 - Complexity of Background Screening Across Latin America

- Mexico Marijuana and Drug Reform Bills Filed

SOUTH AMERICA  
BRAZIL

 - Immigration Law to Change to Encourage Foreign Professionals

 

 

World wide news


-DATA PROTECTION & PRIVACY-

 

 A New Handy Guide to Global DPAs

 

DLA Piper has attacked the problem of surveying the world's data protection laws and regulations with a handy online and interactive guidebook for which they've released version 2.0. It begins with a map of the world, with countries colored to indicate the strength of their privacy laws and then you have tabbed options for turning the page to see a specific country's law, regulator contact information and then specifics on how a country regulates anything from infosecurity to breaches to electronic marketing. It's also possible to set two countries side by side and compare the way they regulate date protection. They offer a mobile interface, or you can download all of the information in a readable PDF. "People are saying, 'You're crazy to give away this kind of information,'" said DLA Piper Partner Patrick Van Eecke. "But our strategy is that we can give away this kind of information because we want to get into more complex legal situations like developing strategies for data protection." There are 65 different jurisdictions covered in the tool. As a living, breathing online organism, it will require almost constant updates so as not to become quickly outdated. 
 
Read more

 

 -EMPLOYMENT OUTLOOK-

 

Global Hiring Levels


In its latest international survey, leading global search and selection specialist, Antal International, has found that employment markets at managerial and professional level around the world are stabilising. The ‘Global Snapshot’ project asked more than 10,500 businesses in major markets in 40 key countries around the world whether they were currently hiring or firing at managerial and professional level and if they were planning on doing so in the next three months. The results show that average hiring levels across the globe have dropped slightly as 51% of companies are currently planning to take on staff. This is a reduction of 3% from the June 2013 edition of the Snapshot, but represents an increase of 5% year-on-year. This is expected to remain fairly consistent in the next quarter. The number of companies letting go of staff stands at 16%, a reduction of 3% since June 2013 and in line with figures from January 2013 where the same score was recorded. “At the very least these results indicate increased stability within the market,” said Antal Chairman, Tony Goodwin. “It will be interesting to see how this develops in the next quarter, but for now the signs are promising.”
 
Read more

 

Africa Middle East


Israel

Should Employee’s Criminal Past be Taken into Consideration in Decision to Hire?
 
A regional marketer at a non-profit lottery organization submitted his candidacy for the same position in a new tender published by the lottery. However, his candidacy was rejected after it became known that he was being investigation on suspicion on bribery in connection with a previous tender published by the lottery. While his candidacy was being considered by the committee, the candidate received an unofficial notice that the case against him had been closed due to lack of evidence. Nevertheless, his candidacy was rejected. The candidate appealed to the courts, hoping that the lottery’s decision would be overruled, but his claim was dismissed. The court argued that the fact that the investigation was pending and no decision had yet to been taken to file an indictment did not render such suspicion irreverent. The challenge is to strike the correct balance between an employer’s legitimate interests in protecting its business from candidates who are convicted criminals and society’s legitimate interests in facilitating the rehabilitation of repentant criminals.
 
 Read more (Requires free Subscription

 
Asia Pacific 

Australia

-DATA PROTECTION & PRIVACY- 
 
 Australian Privacy Act Changes Smell SOXish

The Privacy Amendment (Enhancing Privacy Protection) Act 2012 was passed in November 2012 and includes a new set of harmonised privacy principles that regulate the handling of personal information by both Australian businesses and government agencies. Unfortunately, these commendable changes introduce problems that reflect the ambiguity of the Sarbanes-Oxley (SOX) legislation in the U.S. Enacted in 2002, the SOX law enhanced standards for U.S. public company boards, management and public accounting firms that required top management to
individually certify the accuracy of financial information, applying much more severe penalties for fraudulent financial activity. While SOX has raised the compliance bar for corporate reporting, it has had the unintended impact of creating a lot of uncertainty due to lack of precision. In fact, SOX compliance costs and complexity have run out of control in the U.S. Australian organisations will face the same dilemma with the new Australian privacy law - they "must take reasonable steps" to demonstrate compliance with the new legislation without a clear understanding of exactly what is required. To successfully comply, both public and private sector organisations need to take special note of key changes to the law and act now to prepare for March 2014.
 
Read more

A Brief Guide to the ICT Security Controls Required by the Australian Privacy Principles


The Privacy Amendment Act 2012 has passed through the Australian Parliament and took effect on 12 March 2014. The new legislation introduces significant obligations for the protection of Personal Information held by Australian organisations and material financial penalties of $1.7mil for all Australian organisations with revenues greater than $3mil. Organisations that collect and or hold Personal Information are required to comply with the Privacy Act 1988 and its Amendments. The Privacy Amendment Act includes a set of new, harmonised, privacy principles that will regulate the handling of Personal Information by both Australian government agencies and businesses. One of the key aspects of the amendments involve changes to the penalties for non-compliance. The Australian Information Commissioner’s powers have been expanded under the Amending Act reforms. The Commissioner will have the power to issue guidelines to a non-compliant entity or vary their registered APP code by including additional requirements for compliance. Breaches of the Privacy Act will be deemed an interference with privacy and could lead to an entity being subject to investigation by the Commissioner. The Office of the Australian Information Commissioner has published a handy guide that organisations can follow to understand what ICT security measures that need to undertake.
 
Read more

-CRIMINAL RECORDS-
 
Number of NSW Police with Criminal Records has Doubled Last Five Years

The number of New South Wales (NSW) police officers with criminal records has more than doubled over the last five years. Around one in 40 serving officers have committed criminal offences, some as serious as assault, drink driving, fraud and the illegal use of guns. NSW Police says efforts to weed out those who've committed offences are sometimes thwarted by the Industrial Relations Commission, which frequently reinstates sacked cops. NSW Police acting commissioner David Hudson says that police officers “are assessed on their individual merits and a decision made as to whether those individuals have, those individual police officers have lost their entitlement to be a police officer.” Even though it may be frustrating for the commissioner to have a decision overturned, Hudson says that he can’t comment on the courts’ determinations. “There is a huge cost to the community of NSW in relation to training these officers and whether one mistake curtails their career, in many instances it does because of the level of criminality but some of the lower levels of criminality, the decision is made for them to remain in the police.”
 
Read more
 
Employers to Receive More Access to Cross-Tasman Criminal History Checks


Australian and New Zealand employers are to have greater access to respective national criminal history checks for employment vetting purposes. The move follows a successful trial of criminal history information sharing between Queensland and New Zealand. "As the movement of workers between Australia and New Zealand has grown it makes sense that employers in both Australia and New Zealand have access to the type of background information that is available for local workers," Senator Brandis said. 

 Read more 
 

China

-DATA PROTECTION & PRIVACY-
 
China to Publish All Court Judgments, with Some Privacy Protections

China’s Supreme People’s Court (SPC) issued a new regulation “Provisions on the Online Issuance of Judgment Documents by People’s Courts,” (Provisions), requiring that all court judgments in China be published online in a searchable public database specially set up for that purpose. Under the Provisions, formulated with the aim to ensure the public’s right to information, participation, and supervision relating to judicial proceedings, all judgment documents from People’s Courts at all levels are required to be submitted to relevant authorities for online publication within seven days of their effective date. In addition, the Provisions provide that real names of the parties generally should be retained to meet the needs of public access to information. These rules are formulated to balance the public’s right to know against the protection of personal privacy. In sum, the Provisions indicate a critical improvement in China in terms of both independence and transparency of the judiciary and the protection of personal privacy.
 
Read more

Draft Rules to Introduce First Personal Health Data Protection Framework

Public consultation on a draft regulation on the administration of personal health information (PHI) (the regulation) - published by the Chinese National Health and Family Planning Commission (NHFPC) on 19 November 2013 - closed on 20 December 2014. The final regulation, when promulgated, will introduce the first dedicated framework for the protection of PHI in the People's Republic of China (PRC). Under the regulation, PHI is defined as basic personal information, electronic health records, electronic medical records, and information collected for the purposes of administration and management of health institutions' services. This regulation's expansive definition of PHI provides additional clarity and guidance for the scope of personal medical information protected within the PRC. Under the regulation, greater protection will be accorded to PHI, such as the requirement to inform the data subjects of the purpose of data collection and obtaining their consent, and prohibiting the collection or use of PHI for commercial reasons. Furthermore, health institutions will be required to establish rules on identity verification and access to databases containing PHI and the storage of PHI will be restricted to servers located in China. The regulation does not currently specify any remedial measures for contravention of its provisions.

Read more

Hong Kong

 
Hong Kong Attracts Companies but Talent in Short Supply

Hong Kong continues to attract companies looking to gain a foothold in Asia, but talented professionals are in short supply. The ‘Michael Page Hong Kong 2014 Salary & Employment Forecast’ shows average salaries in Hong Kong are expected to increase over the next 12 months, with 71% of all surveyed employers expected to offer salary increases of between 1% and 5%. Sectors expected to provide employees with higher salary increases of 6-10% include procurement & supply chain (50%), secretarial & office support (42%) and legal (33%). Andy Bentote, senior managing director of PageGroup, comments: “While some established businesses are beginning to look at setting up in other cities such as Shanghai and Singapore, Hong Kong’s deep pool of talent makes it hard to beat for companies starting out in the region.” Michael Page also witnessed growth in Greater China and achieved record revenue for the region in 2013, in particular, a resurgence in financial services in Hong Kong contributed to its revenue growth. Bentote adds: “For 2014, we believe that staff retention will be the key theme for employers in Hong Kong as competition for the best performers will be strong.”
 
 Read more
 

Malaysia

 
SSMI Effective in Screening Background of Candidates


Backgrounds of candidates will be reviewed and cross-checked with other departments before they can be hired into the civil service. The checking would be done through an information system that has been implemented by the Public Services Commission (PSC). Minister in Prime Minister's Department Datuk Joseph Entulu Belaun, said the individual review information system (SSMI), was an effective and good system to screen the background of candidates. The information system was tested via a proof of concept. A total of 2,384 candidates were screened and only two
candidates were found to be problematic. Joseph lauded the system as it would enable the commission to conduct background checks on applicants in case they hold criminal records, if they are not a valid Malaysian citizen, or if they have been declared bankrupt by the Insolvency Department. "It is a collaborative effort and a total of 31 agencies will be using the new system," he said. Joseph added that the timeframe to obtain the results from the screening were one day for both NRD and the Insolvency Department, and five to six days for the Chief Government Security Office.
 
Read more



New Zealand

-DATA PROTECTION & PRIVACY-
 
New Zealand Data Protection Authority's Powers Held Back by Government Veto

The Privacy (Giving Privacy Commissioner Necessary Tools) Amendment Bill that would have given greater powers of control to the New Zealand data protection authority, the Office of the Privacy Commissioner (the DPA), has been blocked by a negative vote in New Zealand Parliament. The draft bill proposed by the Labour opposition party states, "At the moment, enforcement of the Privacy Act 1993 is complaints-driven. People can complain to the Privacy Commissioner about breaches of their privacy rights under the Act. But the Commissioner has only limited powers to take action about breaches of the Act of its own initiative. Such a system is not well suited to addressing underlying systematic problems."

Read more

-BACKGROUND SCREENING-

Lie Detector Tests for Job Applicants

Polygraph, or lie detector, tests are now being offered to New Zealand companies and recruitment agencies for use in pre-employment checks. The test is part of a growing industry in background checking of new staff, as employers become more aware of the need to make sure they are hiring the correct person. But critics claim the data collection - which can include checks into a person's ACC history, with their permission - are excessive and take advantage of desperate job seekers. Resume Check owner James Sutherland, whose company offers comprehensive background check packages - including a person's ACC history - said most candidates were accepting of the process. It is important that the information collected be relevant to the role. Lie Detector New Zealand director Barry Newman, said demand in the pre-employment area had been low, with employers unsure about using the technology in the workplace. "Before shelling out for a highly intrusive service like polygraph testing, common sense as well as privacy rules mean you should check that it's something that you really need and that you have a really good case which can be justified under the Privacy Act,” said Assistant privacy commissioner Katrine Evans.

Read more
 

Europe

 -DATA PROTECTION & PRIVACY-

EU Calls for Much Bigger Fines for Data Breaches

The EU's justice commissioner has called for bigger fines for companies that breach European data privacy laws. Viviane Reding dismissed recent fines for Google as "pocket money" and said the firm would have had to pay $1bn under her plans for privacy failings. Reding said such punishments were necessary to ensure firms took the use of personal data seriously and she wants far tougher laws that would introduce fines of up to 5% of the global annual turnover of a company for data breaches. The new proposals, currently under debate in the European parliament, aim to create a single EU regulator, which would be able to issue fines on behalf of all national watchdogs. The continuing row between Google and local data authorities was a case in point for why new laws were needed, she said. The Spanish data protection agency said that Google had collected information across almost 100 services but had not obtained the consent of people to gather information, or done enough to explain what would be done with the data. According to Reding, European trust in the way private companies store data is low.

Read more

LIBE Draft Report Calls for 'Immediate Suspension' of Safe Harbor

The Civil Liberties, Justice and Home Affairs Committee (LIBE) of the European Parliament released its Draft Report on mass surveillance (the Report) following the NSA surveillance programme revelations of 2013, calling on the immediate suspension of data flows 'to any organization that has self-certified its adherence to the U.S. Safe Harbor Principles.' The Report, found that the Safe Harbor framework does not currently provide adequate protection for EU citizens and calls for its suspension. The Report states that 'trust has been profoundly shaken [and] in order to rebuild trust in all these dimensions a comprehensive plan is urgently needed.' Jan Philipp Albrecht, Member of the LIBE Committee said, "We need clear demands from the United States, underlined by drawing consequences on our side such as terminating the Safe Harbor decision." The Report also expressed concerns over the admissions by organisations such as Apple, Google, Microsoft and Facebook that 'they do not encrypt information and communications flowing between their data centres, thereby enabling intelligence services to intercept information.' Albrecht noted that, "…there is a need to strengthen [the Report] with clearer demands for stronger control of the collection and evaluation of private data and personal communications.”

Read more

New Data Protection Handbook Outlines Alternative Test for Determining Anonymisation

A new handbook on European data protection laws contains a different test from the one used by the UK's ICO for determining whether data is personal or anonymised for the purposes of data
protection law. The document is non-binding but is designed to "raise awareness and improve
knowledge of data protection rules in European Union and Council of Europe member states". EU data protection rules apply to the personal data of living 'data subjects' and not to where that data has been anonymised. Absolute anonymisation has become increasingly difficult in recent times due to the increasing volumes of data being generated and the availability of powerful technologies that allow information from one data set to be linked to information elsewhere. The watchdog's code made clear that the ICO would be unlikely to take enforcement action against organisations that disclose data they believe to have been anonymised when in fact it was not

where those organisations could show they had "made a serious effort to comply with the DPA and had genuine reason to believe that the data it disclosed did not contain personal data or present a re-identification risk.”

Read more

 France

-DATA PROTECTION & PRIVACY-

CNIL Adds New Consent Requirement for Use of Credit Card Data

The CNIL, France’s data protection authority, published a new recommendation relating to the collection of credit card information, replacing an older 2003 recommendation. The new recommendation, which represents a de facto standard for online merchants and payment services providers who collect data from French consumers, is more prescriptive than the old, particularly regarding how online merchants should seek consent for the retention of credit card information. Under the CNIL’s analysis, the principle purpose for which consumers provide payment information to a merchant is to complete a given online transaction. If a merchant or service provider wants to retain card information to provide additional services, such as the ability to make subsequent purchases without having to enter credit card information a second time, the CNIL considers this as a separate “purpose” for which the online merchant must seek separate consent. The CNIL said that a user’s consent to the terms and conditions is not sufficient. There must be a separate check-the-box consent pursuant to which the consumer explicitly agrees that the online merchant may keep payment details in order to facilitate future transactions. The online merchant must then give users a visible and easy-to-use opt-out to later revoke their content.

Read more

More CNIL Guidance for Multinationals Seeking to Comply with SOX & Dodd-Frank

United States employers operating in France often face a dilemma. While they may be bound by the whistleblowing requirements of the Sarbanes-Oxley Act (SOX) and its Dodd-Frank amendments,they also are bound by the data privacy requirements of French law, which can be at odds with U.S. whistleblowing laws. The French data protection authority (La Commission Nationale de l'Informatique et des Libertés or CNIL) periodically issues guidelines that provide some clarity on how employers can resolve this conundrum. On January 30, 2014, the CNIL finalized amendments to these guidelinesexpanding the scope of the topics that could be disclosed through an anonymous whistleblowing hotline. The amendments also clarify the conditions under which SOX-type anonymous whistleblowing is permitted under French law. The new guidelines attempt to balance the CNIL's interest in ensuring that employers establish a transparent whistleblowing system with its divergent interest in protecting the confidentiality of the report and the identity of the whistleblower. In particular, the guidelines require that a whistleblower self-identify, and that the corporate administrator managing the "alerts" treat that identification as confidential. The CNIL's guidance provides useful clarity for employers that have implemented, or plan to implement, a whistleblower scheme that is consistent with French law. 

Read more

 

Germany

-DATA PROTECTION & PRIVACY-

German Consumer Organisations to be Empowered to Sue Businesses for Data Protection Law Breaches

Justice Minister, Heiko Maas, announced a draft Bill will allow consumer organisations to take businesses to court for non-compliance with Germany's Data Protection Act. Consumer rights organizations in Germany often pursue individual rights in terms of breaches of consumer protection legislation and unfair competition laws. The proposed amendment to the law will also strengthen consumer organisations' pursuit of claims under data protection law. The Federation of German Consumer Organisations - Verbraucherzentrale Bundesverband (VZBV), a non-governmental organisation acting as an umbrella for 41 German consumer associations, welcomed the announcement resulting from the coalition agreement. VZBV stated that the new amendment would create a legal basis for consumer organizations to take legal action against data protection violations and seek a cease and desist order. This would be achieved by an amendment to the Injunctions Act (UKlaG) so that both data protection laws and consumer protection laws would come within the meaning of § 2, paragraph 2 UKlaG. This new Bill is part of the coalition agreement of the newly elected government so it is highly likely that it will enter into force.

Read more

 

Netherlands

Sixty People Lose Childcare Jobs After Screening

So far 60 people have lost their official authorisation to work with children since continuous background checks were introduced in March, according to social affairs ministry figures. Most of the crimes relate to partners of official child-minders. In 28 cases, the crime was of a violent nature, but 13 involved sex-related crimes.

Read more

Ukraine 2 

New Notification Rules Introduced for 'Risky Data'

Amendments to the Ukrainian Law on Personal Data Protection (the Amendments) - in force from 1 January 2014 - introduce new liabilities for unapproved processing of high risk data, with a maximum penalty of 680 € (3,400 € if repeated in the same year). The Amendments, which were adopted 3 July 2013, also remove the requirement to register databases containing personal data. However, the amendments stipulate that processing of data comprising 'special risk for data subject's rights and freedoms' requires approval of the Parliamentary Commissioner for Human Rights Ombudsman (the Ombudsman). The Amendments confer regulation of data protection to the Ombudsman, replacing the State Service of Ukraine for Personal Data Protection. The Ombudsman has clarified that high risk data includes sensitive personal data, as defined by the law. ''Risky personal data comprises a wider list than sensitive personal data,'' said Vladyslav Podolyak, Senior Associate at Vasil Kisil and Partners LLP. “Risky data also includes: national origins, membership of religious organisations, criminal prosecution, [...] personal location and movement.'' The Ombudsman has also drafted new rules on privacy compliance audits and a new Standard Data Processing Procedure, which clarifies organisations' responsibilities in collecting, retaining and handling data.

Read more

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.

Read more

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.

Read more

-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.

Read more

-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.

Read more

-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.

Read more
 

Changes to the civil penalty scheme to prevent illegal working

Following a public consultation in the summer 2013, the government announced its intention to make changes to the civil penalty scheme to prevent illegal working. Details were set out in its response to the consultation in October 2013. The changes are intended to encourage and support employers to fulfill their duty to make the correct checks on their employees to ensure that they have the right to work in the UK. They came into force on 16th May 2014.

Employers have had a duty to prevent illegal working since 1997 by carrying out specified documents checks on people before they employ them. since 2008, thisduty has been underpinned by a civil penalty scheme. Under section 15 of the Immigration, Asylum and Nationality act 2006 an employer may be liable for a civil penalty if they employ someon who does not have the right to undertake the work in question.

On 16 May 2014 changes came into force to strengthen and simplify the civil penalty scheme for employers. This includes changes to make it easier for the employers to conduct right to work checks on their employees, as well as ensuring a more robust response to the buniness which employ illegal workers.

To simplify the right to work check, the Home Office

  •  have begun to reduce the range of acceptable documents that employers may have to check;
  • reduced the frequency of the follow-up document checks for most employees with limited permission to be in the UK;
  • doubled the grace period for the right to work checks for employees acquired as a result of a Transfer of Undertakings (Protection of Employment) to 60 days; and
  • are simplifying their guidance and improving their support for employers.

Illegal working is the main incentive for illegal immigration and often results in abuse and exploitation, the mistreatment of illegal migrant workers, tax evasion and illegal housing conditions. It can undercut legitimate business and have an adverse impact on people who are lawfully in the UK.

To get tougher on employers of illegal workers the Home Office are doubling the maximum civil penalty for the employment of an illegal worker to £20,00. The increased maximum penalty better reflects the harm caused by employing illegal workers, the costs to wider society and the unfair economic advantage derived from the activity. The Home Office are alos using the Immigration Bill to make it easier to enforce the payment of civil penalties in the courts.

Full details of the changes and the new requirements are set out in the Home Office guidance.

These measures do not make employers responsible for immigration control. The Home Office remains the first line of enforcement against illegal immigration and works with other agencies across government to take effective action against labour market abuse.

Changes to legal definition of ‘work with children’

The Home Office recently made changes to existing legislation to provide a legal definition of ‘work with children.’

These changes consolidate the existing prescribed purposes (a role or activity set out in Police Act regulations which provides eligibility for Enhanced criminal records checks to be submitted) relating to working with children, and bring them together into a single prescribed purpose called ‘work with children’. This allows for Enhanced criminal records checks to be made.

The new legislation can be found on the legislation.gov website:

SI 2013/2669

SI 2014/955 

It gives more clarity – for example it includes a reference to special guardians, who although previously eligible for enhanced criminal record checks courtesy of the role, had not been previously named. As with a prospective adopter, this would also include any persons aged 18 or over living in the same household as the special guardian.

Here’s a summary of the new prescribed purpose:

  • Activities that would have met the definition of regulated activity with children before the introduction of the Protection of Freedoms Act (PoFA) in September 2012
  • Activities that meet the definition of regulated activity with children
  • Adoptive parents, special guardians and any of their household members aged 18 and over
  • Registration for child minding/day care and any household members aged 16 and over
  •  Registration under Part 3 of the Childcare Act 2006 and any household members aged 16 and over
  • Foster carers and any household members aged 18 and over*
  • Private foster carers and any household members aged 16 and over
  • Household members aged 16 and over of individuals who are in regulated activity with children, or would have been in regulated activity with children before the introduction of PoFA in September 2012 and live on a school site; or are working and living in an Further Education (FE) institution or 16-19 Academy
  • Working in an FE institution or 16-19 Academy where the normal duties of that work involves regular contact with children
  • Activities that would have been regulated activity with children before the introduction of PoFA in September 2012 if they met the period condition but are only carried out infrequently • Activities that would be regulated activity with children if they met the period condition but are only carried out infrequently
  • Registration under Part 2 (Establishments) and Part 4 (Social Care Workers) of the Care Standards Act 2000

Eligibility for accessing children’s barred list checks has not been affected by these changes. The eligibility guide and the DBS child workforce document have been updated to reflect this change.

*In line with the Department for Education fostering regulations.

United States

 

- US Legal Issues -

Health Care Worker Drug Testing Bill Advances in New Hampshire

The first law in the nation to require the widespread drug testing of health care employees may be on its way to passage, as the New Hampshire House of Representatives has passed by a vote of 289-48, without debate, “an Act relative to the drug-free workplaces for licensed health care facilities and providers.” It seeks to foster the safety and protection of patients and health care workers “by promoting and maintaining a substance-free work environment and discouraging the illegal use and diversion of controlled substances by health care workers.” The measure (H.B. 597-FN) would mandate that licensed entities establish “procedures for drug testing which shall include, at a minimum, testing where reasonable suspicion exists,” as part of a broader “drug misuse and diversion prevention policy” providing for the “prevention, detection, and resolution of controlled substance abuse, misuse and diversion.” The facility would have to designate an employee or interdisciplinary team of employees to be responsible for the policy. The bill is intended to offer flexibility to health care facilities and providers “to develop and adopt a workplace standard appropriate to its size, the nature of the services provided, and its particular setting.” 

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Is FCRA’s Prohibition on CRAs from Disclosing Truthful Public Information Constitutional? The Government to Defend its Position

The Southern District of California has granted the United States’ motion to intervene in Dowell v. General Information Services, Inc. (GIS), to defend the constitutionality of 15 U.S.C. § 1681c, a provision of the FCRA. GIS contends that subsections (a)(2) and (a)(5) of the provision, which generally prohibit CRAs from disclosing public information regarding an individual’s non-conviction criminal history more than seven years old, is unconstitutional under Sorrell v. IMS Health Inc., 131 S. Ct. 2653. The case stems from a purported class action complaint filed by three plaintiffs, alleging that GIS provided non-conviction data over seven years old in a report to a private company that regulates access and provides employee registration for military base personnel. For background screening providers, if GIS is successful in its argument, the restriction on reporting older, non-conviction criminal history would cease to exist under federal law. Where the EEOC has issued guidance stating that an arrest alone is not grounds for denying an employment opportunity, even the EEOC recognizes that an employer may make a decision based on the underlying conduct if the conduct makes the individual unfit for the position in question. Read more

 San Francisco's Board of Supervisors "Bans The Box" and Further Complicates Criminal History Checks by the City's Employers

The San Francisco’s Board of Supervisors is ready to “ban the box,” the widely used criminal history check box on employment applications. This would make San Francisco the ninth jurisdiction to enact the legislation. In addition, the new San Francisco legislation imposes a host of additional new restrictions on the use of criminal history for employment purposes. These restrictions supplement those already imposed by the federal FCRA and arguably make San Francisco the toughest jurisdiction in the U.S. for employers to use criminal history. To comply, San Francisco employers with more than 20 employees

should take the following steps: Review their employment application to remove questions about criminal history; Revise their hiring procedures to delay inquiry about criminal history until after the first live interview; Develop a criminal history questionnaire; Establish a procedure for documenting evidence of rehabilitation and mitigating factors received from applicants and for considering that information before making an adverse employment decision; Establish a minimum seven-day waiting period before sending a final adverse action notice; Revise job advertisements to include required language; Post the required poster after the OLSE publishes it; and Retain all documents demonstrating compliance with the Ordinance for at least three years.

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Tommy Wells' 'Ban the Box' Bill Gets Strong Support

D.C. Council member Tommy Wells introduced “ban-the-box” legislation that would bar employers from inquiring about job applicants' criminal records, a practice he says hinders employment opportunities for returning citizens. "The bill would only allow employers to ask about an applicant's record of conviction once a conditional offer of employment has been extended," he said. "The bill would continue our efforts to address the challenges facing our returning citizens." District government statistics show that about 60,000 residents have criminal records. Each year, an estimated 8,000 residents return to the city after serving prison sentences and roughly 50% are incarcerated again within three years. While most on hand supported the bill, Kathy Hollinger, the president of the Restaurant Association Metropolitan Washington, argued that small businesses will essentially have to use valuable time on paperwork to justify not hiring a returning citizen. Rowe countered that Wells' legislation will not require a business to hire anyone but will give returning citizens a fair chance to be employed. Businesses will not be required to hire someone who has committed a crime in the arena in which the business specializes.

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Whole Foods Sued Over Worker Background-Check Procedure

Whole Foods Market California Inc. was slapped with a proposed nationwide class action accusing the company of using a legally invalid form to get job applicants to consent to background checks as part of the hiring process. The complaint claims that the form Whole Foods uses as part of its online application to get permission from applicants to carry out consumer reports, including criminal background checks, credit checks and other similar reports, is facially invalid under the FCRA. The complaint alleges that Whole Food's online authorization form contains language releasing those who obtained the consumer reports from all liability, in violation of the FCRA’s requirement that the authorizations be pristine documents that contain nothing other than the required disclosures and the requested authorization. “It's not only illegal but also has a lot of negative ramifications when companies don't properly comply with the law,” said Craig J. Ackermann of Ackermann & Tilajef PC, who represents the plaintiff. The suit alleges that the use of the invalid form constitutes a willful violation of FCRA's requirement that the authorization forms be set forth in a document that consists solely of the disclosure.

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Background Check Forms Face Increased Scrutiny in Federal Court

Businesses should check their background check consent forms and their pre-adverse action waiting periods, after a recent federal court decision. In Reardon v. Closetmaid Corporation, the district court granted summary judgment in favor of a class of more than 1,800 job applicants. The Court ruled that the employer’s consent and disclosure form was improper because it contained a waiver of liability, even though the inclusion of such waiver language is commonplace. The Court also granted summary judgment to a subclass of job applicants who were properly sent a pre-adverse action notification form, as required under the FCRA, but whose applications were then denied within fewer days than what this Court considered a “reasonable time period.” Because the Court also determined that the employer’s background check procedures were unreasonable, the company faces statutory liability of $100 to $1,000 per applicant, plus punitive damages and attorneys’ fees. Yet, there is no indication that any of the class members suffered any injury whatsoever. As a result, cautious employers should consider removing from their consent and disclosure forms any waiver language, and implementing an internal policy of waiting five business days between sending a pre-adverse action notice and taking any adverse action.

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More Restrictions on Criminal Background Checks

California appears to be the latest state to join the criminal-background-restriction bandwagon. A new law enacted last month amends the California Labor Code to prohibit public and private employers from asking job applicants about criminal records that have been expunged, sealed or dismissed. “The good news is that [the law] doesn’t break entirely new ground, but instead modifies existing law,” says Brian Inamine, a LeClairRyan labor and employment attorney. “The bad news is that it represents one more hurdle that businesses have to contend with.”

To date, 43 cities, counties and municipalities, and 10 states have passed “ban the box” legislation for public-only or public and private employers, making questions about criminal convictions on job applications illegal.

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Class Action Lawsuit Challenges Legality of Retail Theft Databases in California for Background Checks

Les Rosen

The use of a “Retail Theft Contributory Database” in California is being challenged in a class action lawsuit filed in federal Court in San Francisco on January 31, 2013.  The lawsuit alleges that this type of database violates both federal and state laws by providing information to retailers about detentions for suspicion of theft or fraud but did not result in a conviction. The lawsuit seeks damages of up to $1,000 for every California consumer that was the subject of a negative report within the last two years where there was not a conviction, as well as legal fees and other damages.

According to the Complaint filed in Court, the background screening firm that is subject of the class action lawsuit sold memberships to retail merchants that required each merchant to contribute suspected theft or shoplifting records of employees or customers to a database shared by all members, essentially creating a retail employment blacklist.

This case was filed in United States District Court, Northern District of California, on January 31, 2014 (CV 14-0493).

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Proposal Would Force All Kansas Teachers To Be Fingerprinted

A new plan to require criminal background checks for all Kansas educators is generating a lot of buzz across the state. The proposal would require teachers to be fingerprinted in order to renew their teaching licenses. For teachers who were hired after 2002, the plan doesn't involve anything new for them. Fingerprints have been part of the requirements to get an initial teaching license for the past 12 years. 

The Kansas Department of Education estimated about 35,000 teachers were hired before those rules were in place. 

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Proposed Bill Would Establish Standards for National Data Security 

The bill, introduced in the Senate on January 15, 2014 and cited as the Data Security Act of 2014, would require entities such as financial institutions, retailers, and federal agencies to better safeguard sensitive information, investigate security breaches, and notify consumers when there is a substantial risk of identity theft or account fraud. The new requirements would apply to businesses that take credit or debit card information, data brokers that compile private information, and government agencies that possess nonpublic personal information.  According to Sen. Tom Carper (D-Del.) and Roy Blunt (R-Mo.), who introduced the bill, the Data Security Act of 2014 is modeled after the data security and breach-response regime established under the Gramm-Leach-Bliley Act of 1999 and subsequent regulations.

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Scrutiny of Predictive Scoring Products is on The FTC's Agenda In 2014

According to the Federal Trade Commission (‘the “FTC”) and media reports, companies are using predictive scoring for a variety of purposes, ranging from identity verification and fraud prevention to marketing and advertising. The scores, are touted to predict, for example, the likelihood that a person has committed identity fraud or that a certain transaction will result in fraud; the credit risk associated with mortgage loan applications; whether contacting a consumer by mail or phone will lead to successful debt collection; or whether sending a catalog to a certain address will result in an in-store or online purchase.

Consumers are largely unaware of these scores, and have little or no access to the underlying data. As a result, predictive scoring products raise a variety of privacy concerns and questions that the FTC intends to explore. Among the issues, are what consumer protections exist or should be provided, and whether certain scores are considered eligibility determinants that fall under the ambit of the Fair Credit Reporting Act.

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Two Court Decisions Say FCRA Disclosures Cannot Contain Liability Waivers

On December 2, 2013, the U.S. District Court for the Western District of Pennsylvania ruled that a combined disclosure and authorization form that contained a liability waiver which the employer gave to a group of former job applicants violates the Fair Credit Reporting Act (the "FCRA.") The court determined that a significant portion of the 1,800 individuals in this class action are entitled to willful damages under the FCRA and could each receive the greater of his/her actual damages or $1,000 plus attorneys' fees.  This is a second published decision to hold that liability waivers invalidate the disclosure requirements under the FCRA. The first ruling rendered in January 2012 in the U.S. District Court in Maryland found that "both the statutory text and FTC advisory opinions indicate that an employer violates the FCRA by including a liability release in a disclosure document." Thus far, only the U.S. District Court for the Western District of North Carolina disagreed, deciding in August 2012 that the liability waiver included in the defendant employer's combined disclosure and authorization form was kept sufficiently distinct from the disclosure language so as not to render it ineffective.

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North America

Canada 2

-BACKGROUND SCREENING NEWS-

Mid Employment Checks - Legal but Complicated

 The effects of a new rule placed by the Canadian government institution are beginning to come to the surface, especially now that Canada's Post Corp., its main postal service provider has changed its policy to match it. Its 71,000 employees will have to adhere to the new policy, which required background checks for mid-employment positions. Its main opposition comes from the Canadian Union of Postal Workers (CUPW), who are opposed to the new policy for several reasons, including the vague requirements outlines, the lack of disclosure about the purpose and scope and the risk of discrimination. The Canadian Human Rights Commission assures employees that asking a current employee to sign a consent form for background checks is in no way a violation of their human rights.

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-IMMIGRATION ISSUES-

Ontario Introduces New Immigration Legislation

On February 19, 2014, the Ontario government introduced Bill 161, the Ontario Immigration Act, 2014, proposed legislation that would, if passed, create a new framework for the recruitment, selection and admission of skilled workers in the province, and establish a significant inspection, investigation and enforcement regime. Among other matters, Bill 161 provides for the establishment by regulation of an “employer registry” and a “recruiter registry”, to identify employers eligible to make offers of employment to selected foreign nationals, and individuals authorized to provide certain selection program services. In addition, the proposed legislation would: empower the Minister of Citizenship and Immigration (Minister) to make orders establishing settlement and integration programs for immigrants or other specified individuals; permit the Minister to appoint broadly empowered inspectors to conduct inspections without a warrant or court order, and investigators to conduct investigations with a warrant; establish significant administrative penalties of up to $150,000 for each contravention on which the order for the penalty is based; establish offences for the contravention of specific provisions of the Act or regulations, subject to a fine of up to $250,000 and/or imprisonment; etc.

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Mexico

-ALCOHOL & DRUG SCREENING-

Mexico Marijuana and Drug Reform Bills Filed 

Lawmakers in Mexico City have filed two bills that would begin to radically transform the country's approach to drugs. One was introduced in the Mexico City legislative assembly and one in the federal legislature. The moves come as the debate over drug policy in general and marijuana in particular heats up in the region. The legalization of marijuana in Uruguay and the US states of Colorado and Washington has enlivened ongoing efforts at drug reform in Mexico, and the country continues to bleed from the violence associated with criminal organizations that rose to power on the back of drug prohibition. The Mexico City bill would de-emphasize small-time marijuana prosecutions. It would instruct police and judges to deprioritize prosecution of marijuana violations in some circumstances, and it would create a Portugal-style "dissuasion commission" which could impose administrative sanctions on offenders instead of subjecting them to the criminal process. The bill would also allow for the limited retail sales of marijuana in the Federal District. The federal bill would raise possession limits for the amount of drugs decriminalized under a 2009 law and would allow for the use of medical marijuana. Read more
South America

Brazil

 

 Immigration Law to Change to Encourage Foreign Professionals

Brazil will change its immigration law to make it easier for foreign workers to enter the country and meet the growing demand for labour, announced Strategic Affairs Minister, Marcelo Neri. He added that the country is ideally seeking professionals from countries with "linguistic affinities" with Brazil. The Brazilian unemployment rate in November was 4.6%, the lowest level since 2002. This has sparked concerns that if the country moves closer to near full employment, it could jeopardise Brazil’s future economic growth. Neri told foreign correspondents, that the government will make it easier for highly qualified professionals; such as engineers, doctors, and technology specialists, to work in Brazil. Neri said the changes would include reducing the bureaucracy involved in obtaining a work visa for Brazil and allowing workers to change jobs without having to request a new visa. A recent study conducted by the Fundacao Dom Cabral business school found that that 91% of companies surveyed said they have problems in hiring qualified technicians, administrators, and project managers. "The lack of qualified manpower has become a major bottleneck in Brazil, and there is no sign that this situation will improve in the near or medium term,” said the survey’s coordinator.

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