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Verifile International Newsletter Issue #8

21 Jan 2015

Welcome to our first international newsletter for 2015! 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 2015 will be prosperous and would like to thank our clients and customers for their continued support.’

In this issue of the International Newsletter:


- EU and APEC Well Set to Work Together
- Reflections from Mauritius for Privacy Pros


- The Challenging Opportunity of Africa's Rising Workforce


- Online Criminal Records


- What They Say in Kenya About Background Checks


- APEC Statement on Promoting the Use of Interoperable Global Data Standards


- NSW to Add Offshore Data Rules into Privacy Legislation
Security Screening Delays Lengthen in SA
- Families SA Hiring Contract Carers to Cope with Workloads
A Dreary Jobs Outlook


- Background Investigators Imprisoned for Illegally Collecting Personal Data


- The Personal Data Protection Framework in Singapore


- National ID System Described as Threat to Privacy


- 'Right to be Forgotten' Ruling Should Not Make People Disappear Online
What Should You Expect from the Elected EU Commission and Parliament?
The General Data Protection Regulation
EU Confirms New Heads of the European Commission


- Belgium's New Government Sets Privacy High on the Agenda


- Job Market Returns to Growth After Faltering in June


- Criminal Records Checks: PSNI Apology Over Backlog


- Germany Bans Uber for All the Wrong Reasons


- Pre-screening Time of Contractors Trebles
- Workplace Drug Testing Up By As Much As 470%


- Robert Poëti Vows to Enforce Taxi Driver Background Checks
Police Too Prying in Volunteer Background Checks
- Eight in 10 Mid-size Canadian Firms Say They’re Hiring


- Government Launches Final Consultation on Data Bill


- "Ban the Box:" A Discussion of Stateand Local Laws Restricting Inquiries into an Applicant's Criminal History - Arizona Lawmakers Want Background Checks For Hotel Workers

- Udall C0-Sponsors Bill To Provide Background Checks To Organizations That Serve Children

- District of Columbia Enacts Ban-The-Box Legislation Limiting Criminal Background Inquiries on Applicants

- Madison Joins Chorus To Ban The Box

- Federal Court of Appeals Addresses Testing Employees for Lawful Prescriptions Drug Use

- Bills Seek To Blunt EEOC Activities

- FTC Action Halts Online High School Diploma Mill That Made $11 Million Selling Worthless

- New York City Council Eyes Limits on Background Checks

- Louisiana Employees Are Restricted in Their Ability to Consider Certain Criminal Records for Employment Purposes

- Dollar General Coughs Up $4M to End Background Check Suit

- Background Screening Company Adopts Revised Procedures in Cooperation with EEOC

- Wal-Mart Stores East Will Pay $72,500 to Settle EEOC Disability Discrimination Lawsuit

- Party City to "Ban The Box" During Hiring Process After Attorney General's Investigation

- Atlanta City Council Approves Ban The Box Legislation

- Ban The Ban-The-Box? Proposed Law May Clarify Background Check Dilemma in Regulated Industries

- St. Pete proposes "Ban the Box" policy and $12.50 minimum wage

- New York Legalizes Use of Medical Marijuana



World wide news

EU and APEC Well Set to Work Together

Differences in the structure and philosophy of the EU and APEC do not mean that these organizations will fail to find common objectives. Within the context of economic interdependence at the global level, they might initiate joint actions and projects as well as foster dialogue, interaction and brainstorming on critical issues. In spite of their differences, their economic agenda is rather similar. Regional cooperation and multilateralism are necessary presuppositions for successfully handling new challenges. These challenges are not limited to the financial sphere but also have a broader dimension.

Read more


Reflections from Mauritius for Privacy Pros

The 36th International Conference of Data Protection and Privacy Commissioners, held in Mauritius and impeccably hosted by the local data protection office, was an extremely productive and revealing event. This annual gathering of regulators and other movers and shakers of the privacy world has become a reference point in terms of debating key public policy issues and coordinating regulatory strategies and actions. Some key points covered were: data protection as an enabler; enforcement cooperation; focus on big data and the internet of things; cross-border data flows still a top concern; and politics will continue to play a role.


Read more

Africa Middle East


The Challenging Opportunity of Africa's Rising Workforce

Africa is growing, and it is growing fast. By 2050, the continent will account for half of the world's population growth, and by 2100 its current 1.1 billion population could quadruple. African leaders see their fast-growing and young population as one of their greatest resources. Yet this rising workforce faces new challenges, such as a rapidly changing work environment, the rise of technology and the need for new skills. Compounding the problem are existing issues that many African nations grapple with, including poverty, lack of access to education, and lack of quality education services when access does exist.


Read more




Drug Test Cheater Finds Out He's Carrying a Passenger

In many industries, the random urine-sample test is just a routine way of minimizing the risk of worker accidents and employer liability. But one hapless Egyptian bus driver learned the hard way that cheating the test and beating the test are two different matters, the BBC reports. Egyptian media outlets reported that testers asked the driver to confirm that his submitted sample was actually his own. When he said it was, they congratulated him on his pregnancy, as he had submitted a sample from his wife. Egyptian transportation authorities reportedly will change their policies to add blood samples to driver testing

Read more



What They Say in Kenya About Background Checks

You have every reason to think twice when the deal is too good, that’s the truth. We grew up knowing the type of women we could date and with this knowledge, young women could not try any funny tricks on us. Three things a man should never indulge a woman unless she is the missus: don’t pay her rent, don’t pay her college fee and don’t even try having a joint account. I know of a married man who lost a lot of money thinking he was paying college fee for his mpango wa kando. Had he taken time to do some background check, the truth could have probably been unearthed earlier.

Read more

Asia Pacific

APEC Statement on Promoting the Use of Interoperable Global Data Standards

In our 2013 declaration, we recognised the contribution that global data standards can make to enhancing supply chain effiency, and encouraged officials to explore what more can be done to facilitate mutual compatibility amongst data standards frameworks, and the compatibility of economies' framworks with the use of global data standards. We instruct officials to further advance work on global data standards by developing pilot projects with the participation of the private sector. We also encourge officials to establish a set of policy-based principles or recommendation whcih could provide reference for future initiatives on global data standards in APEC economies.

Read more







NSW to Add Offshore Data Rules into Privacy Legislation


The office of NSW Attorney-General Brad Hazzard has confirmed the government's intentions to update the state's privacy legislation to make it clear where agencies and healthcare providers stand when it comes to storing data offshore, particularly as part of cloud computing arrangements. The NSW Privacy Commissioner finalised her draft code of practice for offshore data hosting this year, after a number of aborted attempts by her predecessors. Hazzard has also taken the guidance a step further and addresses the issue of transborder movement of personal data in a new version of the NSW Privacy and Personal Information Protection Act 1998.


Read more




Security Screening Delays Lengthen in SA with 140,000 Checks Expected by Mid 2015


Demand for child protection and disability screening checks has doubled with thousands having to wait more than two months for a result, a South Australian parliamentary committee has heard. Department of Communities and Social Inclusion CEO Joslene Mazel told the committee 140,000 screening checks were expected to be made by the end of this financial year. "We are trying to get a balance between doing these checks as quickly as we possibly can and making sure that we do a very thorough assessment," she said. A new online application system that included updates on the progress of background checks is expected to be in place by the middle of 2015.


Read more


Families SA Hiring Contract Carers to Cope with Increased Workloads after Suspending 25 Staff Over Child Protection Concerns


Families SA is hiring contract carers and requiring its own staff to work overtime to cope with the increased workloads caused by the suspension of 25 staff. But the public sector union is concerned that contract carers are not subject to the same level of background screening as the government employees who have been stood down. The Government revealed 25 Families SA residential carer workers had been stopped from working alone with children following an audit of their employment records. Concerns were raised about another 77 staff who remain in their roles. All 102 staff are undergoing further assessment.


Read more




A Dreary Jobs Outlook


The Reserve Bank of Australia has confirmed a dreary jobs outlook, according to the Business Spectator. "Labour market conditions remain subdued," the RBA said in its quarterly Statement. This was hardly news to anyone, coming the day after the official labour force figures confirmed the longest unbroken rising trend in the unemployment rate since the one generated by the early 1990s recession. Official jobs figures showed the trend growth rate in employment as 0.01% a month. So, any improvement would be welcome. But "modest" jobs growth is below the "trend" growth that would normally stop unemployment from rising. Not surprisingly, then, the outlook for unemployment is uninspiring.


Read more




Background Investigators Imprisoned for Illegally Collecting Personal Data


A Chinese court convicted British fraud investigator Peter Humphrey and his wife, Yu Yingzeng, a naturalized US citizen, of illegally obtaining personal information. The husband and wife team ran a China-based consulting ChinaWhys Co, that specialized in providing risk advisory services to multinational companies doing business in China. Prosecutors alleged that the couple violated the law's prohibition on illegal obtainment by collecting 256 personal information records. According to prosecutors, ChinaWhys purchased this information for RMB 800 to RMB 2000 (about US $130 to $325) per record and used it in background investigation reports prepared for ChinaWhys' clients.

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The Personal Data Protection Framework in Singapore

No legislation in Singapore comprehensively deals with privacy. While commonly recognized as a "data privacy law," the Personal Data Protection Act 2012 (PDPA) does not, recognize a right to privacy-in fact, the term "privacy" does not even appear in the PDPA. Contrary to the EU Data Protection Directive, which expressly states in its preamble that "data processing systems are designed to serve man; whereas they must…respect their fundamental rights and freedoms, notably the right to privacy," Singapore has opted for a more business-friendly approach. All organizations that collect, use or disclose personal data in Singapore must comply with the PDPA, regardless of their place of incorporation

Read more



National ID System Described as Threat to Privacy

A proposed national ID system pending approval in the House of Representatives will threaten the privacy of ordinary citizens, a party-list lawmaker warned. Bayan Muna Rep. Carlos Zarate said the “National ID System Bill” or House Bill 5060 would be “a threat to the security of personal information,” and possibly place citizens at risk. “A national ID system will make it mandatory for all to submit personal information to be aggregated into a single dossier which, if compromised, places the Filipino people at very high personal risk,” he said. The bill aims to consolidate all existing government ID systems into one-integrated and efficient identification body.

Read more



'Right to be Forgotten' Ruling Should Not Make People Disappear Online

It's a fact of modern life that we can't escape the far-reaching tentacles of internet search engines. But hope for those harbouring any skeletons came when the European Court of Justice ruled that search engines must erase, on request, search results that are "inadequate, irrelevant or no longer relevant". This followed a EU directive that seeks to protect an individual's "right to be forgotten". The ruling means that anyone can ask search engines to hide them in a specific search results, effectively "erasing" the reference to them. But it is not a perfect solution – it only affects European-based search engines and doesn't force a site to permanently delete a page.

Read more

What Should You Expect from the Elected EU Commission and Parliament?

In March 2014, the European Parliament approved an amended draft of the European Commission's proposed General Data Protection Regulation. The draft regulation is expected to have a significant impact on companies operating within the EU or doing business with the EU. Following the elections in May 2014, the make-up of the EU institutions has changed. Although the on-going data protection reform continues to be a priority for the new EU Commission, we do not expect final adoption of the draft regulation to take place before the second trimester of 2016.

Read more

The General Data Protection Regulation

The European data protection directive is already one of the most stringent data protection laws in the world. Europe is set to have an even more rigorous data protection law with the introduction of the new General Data Protection Regulation (the “Regulation”). The most recent indication from the European Commission is that the Regulation is intended to be finalised in the first quarter of 2015. Although the European Parliament has reached an agreement on certain aspects of the Regulation, there are some outstanding issues which are proving to be more difficult, such as the “one-stop shop” mechanism.

Read more

EU Confirms New Heads of the European Commission – But Who Will Drive Data Protection Reforms?

The European Parliament voted to approve the President of the European Commission’s selections for his team of European Commissioners. Jean-Claude Juncker’s picks received strong endorsement from MEPs, with 423 in favour, 209 against, and 67 abstentions. Even so, he was forced to amend his proposal ahead of the vote after a few of his first picks failed to win over hostile MEPs during Parliamentary confirmation hearings. The new Commissioners will take office on November 3rd, although questions remain over the division of authority within the new Commission with respect to privacy and data protection.

Read more



Belgium's New Government Sets Privacy High on the Agenda, Appointing Minister of Privacy

Belgium will have for the first time in history a member of the cabinet dedicated to privacy. The Flemish liberal Bart Tommelein will be the Secretary of State (i.e. a member of the cabinet assigned to a Minister) responsible for privacy matters. The Secretary of State's other competences include combating social fraud, an activity that typically benefits from extensive use of personal data. It will be interesting to see how he will reconcile the (potential) privacy-invasive nature of his combat against social fraud with his duty to protect privacy. This seems to indicate that the new government intends to play a very active role in legislating privacy laws.

Read more



Job Market Returns to Growth After Faltering in June

Despite being generally characterised as weak, the Danish job market has made steady progress since the labour market bottomed out in December 2009, according to job board Jobindex. Since then the number of new jobs posted online has increased significantly, but during the early summer the job market stumbled, forcing people to question if the recovery was coming to an end. Jobindex concludes that it was only a stumble and not the start of a downward trend. While economic growth figures cannot be described as impressive, there is nothing to suggest that the Danish jobs market has been knocked off course.

Read more



Criminal Records Checks: PSNI Apology Over Backlog

The PSNI has apologised for a delay in employment police checks after it emerged that nearly 230 people have been waiting more than six months. The checks, carried out before certain employers recruit new staff, should be completed within four weeks. However, the BBC has learned that, in some cases, it has taken much longer and people have lost out on job offers. The checks are carried out on anyone who will be working or volunteering with children or vulnerable adults. "Whilst seeking to expedite the applications, it is imperative that we thoroughly consider each application in order to provide proper protection for children and vulnerable adults,” said Superintendent John McCaughan.

Read more


Germany 2

Germany Bans Uber for All the Wrong Reasons

With a single court decision, Uber's low-cost car service has been banned throughout Germany. The taxi firms say that drivers who use Uber's platform to find riders and accept payments don't have the appropriate operating licenses, background checks or insurance. One spokesperson for the taxis said the rules "also apply to neo-liberal firms like Uber." In this case, the court made the decision not out of concern for the safety of passengers, but because German law says that people without commercial drivers licenses can only charge for the operating costs of giving other people rides, not attempt to make a profit.

Read more


United Kingdom 2


Pre-screening Time of Contractors Trebles

The average time taken by recruitment agencies to conduct pre-employment screenings of freelance workers and contractors has recently trebled, according to the chief executive of the Association of Independent Professionals and the Self Employed (IPSE). Chris Bryce said his organisation was “seeing an increasing trend” for more complicated screening measures. Such screening “used to take a week – now it takes three weeks”, Bryce said. Bryce said he did not believe that the increased complexity of the screenings was emerging from employers’ requests. Instead, he believes that recruitment agencies are putting forward offers of more intensive screening as part of competitive bids “to get a client’s business”.

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Workplace Drug Testing Up By As Much As 470%

The significant rise in workplace drug testing in the UK could see a dramatic rise in companies overstepping the mark and acting in an unlawful manner- says a leading employment lawyer. The warning follows a report on the BBC's website in which four leading screening companies say that workplace drug testing has increased significantly in the UK. Under the current laws, workers cannot be made to take a drugs test, but if they refuse when the employer has good grounds for testing, they may face disciplinary action. These regulations are usually in the contract.

Read more

North America

Canada 2


Robert Poëti Vows to Enforce Taxi Driver Background Checks

Quebec law prohibits the issuing of taxi permits to anyone who has been convicted of an indictable offence in the last five years, but the law is not being routinely enforced because of a dispute over who is responsible for background checks. The Quebec transportation ministry says enforcing criminal background checks for taxi drivers is at the top of its priority list, after several women told CBC News they've been sexually assaulted or harassed by taxi drivers. Benoit Jugand, the general director of the Montreal taxi bureau said they have been waiting on a solution for years.

Read more


Police Too Prying in Volunteer Background Checks

A privacy watchdog is calling on B.C.'s privacy commissioner to investigate whether police departments are being too intrusive in the questions posed to potential volunteers and employees. The B.C. Freedom of Information and Privacy Association said several police departments are collecting "unnecessary, inappropriate and excessive personal information" from people applying for paid and unpaid positions. The non-profit association was approached by someone applying for a volunteer position with the Delta Police Department's community police section. The Victoria Police Department has stopped doing criminal record checks until the province comes up with new legislation regarding what information should be released.

Read more


Eight in 10 Mid-size Canadian Firms Say They’re Hiring

Mid-sized Canadian companies are looking to hire, according to the inaugural American Express multinational survey of mid-sized companies. More than eight in 10 Canadian mid-sized companies surveyed, 81%, plan to make an investment in human capital and hire staff over the next six months. While the research found this is a global trend, Canada is the most likely of the seven countries surveyed to report plans to hire. Revenues are up 66% year-over-year and 88% of mid-sized Canadian companies are confident they can access the capital they need to grow.

Read more


Cayman Islands

Government Launches Final Consultation on Data Bill

The Government of the Cayman Islands published, on 19 September 2014, the Data Protection Bill 2014 ('the Bill'), seeking input as part of a final consultation that will end on 19 November. The Bill has been in discussion since 2010 when the Data Protection Working Group (DPWG) of the Cayman Islands presented the first draft with the expectation that the country would obtain recognition from the EU as ensuring an adequate level of data protection. The Bill has been developed in line with international best practices, but a conscious effort has also been made to ensure that it reflects the specific needs of the Cayman Islands', the DPWG stated.

Read more


United States

"Ban the Box:" A Discussion of State and Local Laws Restricting Inquiries into an Applicant's Criminal History

According to the National Employment Law Project, 67 cities and counties and 13 states have adopted such provisions.[1]More cities and states are expected to follow suit. ThisCommentarydiscusses the current state of the ban the box laws, the risks that these laws pose to employers, and strategies for compliance. It also contains a chart with highlights of key provisions from the jurisdictions that have enacted such laws as of the time thisCommentaryis published.

Thirteen states have passed ban the box statutes: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Mexico, New Jersey, and Rhode Island.[3]Of these states, only six-Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, and Rhode Island-regulate private employers' use of criminal records.[4]In addition to these statewide regulations, 67 cities and counties throughout the country have adopted ban the box ordinances, including New York, San Francisco, Austin, Seattle, the District of Columbia, Boston, Chicago, Atlanta, Tampa, and New Orleans.[5]While not every city and county ordinance applies to private employers, a growing number do:San Francisco, Seattle, Boston, New Haven, Indianapolis, Detroit, and Baltimore.[6]

Read more

Arizona Lawmakers Want Background Checks For Hotel Workers

Two Arizona lawmakers have pledged to push for legislation that would prohibit registered sex offenders from having unfettered access to hotel guest rooms, an effort hospitality officials say they would welcome for discussion. The announcement comes in the wake of allegations that two hotel chains with Mesa franchisees failed to properly screen an employee who was a high-level sex offender, enabling him to sexually assault at least two women in their locked hotel rooms.

An official of the Arizona Lodging & Tourism Association said the association would definitely be amenable to discussions about the idea, and guest safety is a critical issue for the industry - "So anything that we can do to assist in that process is definitely a goal."

Read more

Udall Co-Sponsors Bill To Provide Background Checks To Organizations That Serve Children

U.S. Senator Tom Udallannounced that he is cosponsoring theChild Protection Improvements and Electronic Life and Safety Security Systems Act, that would enable children's groups, summer camps, and other youth-serving non-profit associations to gain access to federal criminal background checks on new employees and volunteers.

"We need to do everything we can to keep our sons and daughters safe from violent predators, and organizations like the Girls Scouts should be able to access this federal background check data to fully screen applicants for jobs that serve our children," said Udall. "

Read more

District of Columbia Enacts Ban-the-Box Legislation Limiting Employers' Criminal Background Inquiries on Applicants

A new District of Columbia law, Fair Criminal Record Screening Amendment Act of 2014(Act Number A20-0422), prohibits employers from inquiring into a prospective employee's criminal conviction background on its application and before making a conditional offer of employment. Under the new law an employer may withdraw a conditional offer of employment to an applicant based on criminal conviction information only for a "legitimate business reason."

The reason must be reasonable in light of the six factors listed in the Act, including: 1) the specific duties and responsibilities related to the job sought, 2) the bearing the crime will have on the applicant's ability to perform his or her job duties, 3) the time elapsed since the occurrence of the criminal offense, 4) the age of the applicant at the time of the crime, 5) the frequency and seriousness of the crime, and 6) information produced by the applicant establishing rehabilitation or good conduct.

The new law likely will become effective in early October, after a 30-day period of Congressional review and publication in the District of Columbia Register.

Read more

Madison Joins Chorus To Ban The Box

The City Council of Madison, Wisconsin has the joined numerous municipalities across the country by passing a legislation to ban the box - except for police and firefighter applicants - officials are now considering whether to force city vendors and contractors to do the same.

Past practice was to include the question on city applications, then do criminal background checks on finalists for a job. If a check returned something serious, human resources would tell the candidate thanks, but no thanks, according to city human resources director Brad Wirtz. The new law will remove that box from applications for city employment that asks job-seekers whether they've been convicted of a crime.

Read more

Federal Court of Appeals Addresses Testing Employees for Lawful Prescription Drug Use

The Americans with Disabilities Act ("ADA") makes it unlawful for an employer to either require its employees to undergo medical examinations or make disability-related inquiries that cannot be justified as "job related and consistent with business necessity." The statute, however, expressly provides that testing an employee for illegal drug use is not a "medical examination" that must be justified under this standard. But what about an employer, who, because of safety concerns, requires employees to be tested for substances for which the employee has a valid prescription? Does such a test constitute a medical examination or a disability-related inquiry? InBates v. Dura Automotive Systems, Inc., the United States Court of Appeals for the Sixth Circuit the Court concluded that whether testing for prescription drugs constitutes a medical examination or a disability-related inquiry for ADA purposes depends on the specific facts of the case at hand and, ultimately, may be an issue for a jury to resolve. It is clear that this is an area where employers must tread carefully.

Read more

Bills Seek To Blunt EEOC Activities

Rep. Tim Walberg (R-MI), Chairman of the House Subcommittee on Workforce Protections, introduced two bills on September 10 aimed at curbing the Equal Employment Opportunity Commission's authority.

The first measure, theLitigation Oversight Act of 2014 (H.R. 5422), would require the EEOC to approve, by majority vote, all lawsuits or interventions in lawsuits involving multiple plaintiffs or an allegation of systemic discrimination or a pattern or practice of discrimination. The new legislation would make it more difficult for the EEOC to pursue this initiative, although it is not expected to advance.

The second measure, the Certainty in Enforcement Act of 2014 (H.R. 5423), takes aim at the EEOC's updated 2012 enforcement guidance on criminal background checks. Many in the business community have faulted the EEOC's stance regarding an employer's consideration of an applicant's criminal record in making hiring decisions.

Both bills have been referred to committee.

Read more

FTC Action Halts Online High School Diploma Mill That Made $11 Million Selling Worthless Diplomas to Students

At the Federal Trade Commission's request, a U.S. district court in Florida has temporarily halted a diploma mill that allegedly grossed more than $11 million from marketing and selling fake high school diplomas online to consumers nationwide. The FTC's lawsuit seeks a permanent injunction to stop the deceptive practices and to return ill-gotten gains to consumers.

The complaint alleges that the defendants violated the FTC Act by misrepresenting that the diplomas were valid high school equivalency credentials and that the online schools were accredited. The FTC says the defendants actually fabricated an accrediting body to give legitimacy to the diploma mill operation.

Read more

New York City Council Eyes Limits on Background Checks

The use of criminal background and credit history checks in hiring could be overhauled under two new bills quickly gaining steam in the New York City Council. One bill would prohibit employers from asking a job applicant about past criminal convictions until after they have already been offered a job. A second bill would make it illegal to use a person's credit history in hiring decisions. Both bills have gained support in the council to be veto-proof, according to Councilman Brad Lander who sponsored the credit history bill and Councilman Jumaane Williams who sponsored the criminal background check bill.

The criminal background check bill is set for hearing on December 10.

Read More

Louisiana Employers Are Restricted in Their Ability to Consider Certain Criminal Records for Employment Purposes

Effective August 1, 2014, Louisiana became another state to regulate employer use of criminal record information for employment purposes. Under the new law, expunged records of arrests of convictions are now considered confidential and no longer part of the public record. Those records also cannot be made available to any person or entity except:

  • To members of law enforcement or criminal justice agencies or prosecutors investigating, prosecuting or enforcing criminal law or for other statutory purposes;
  • Upon entry of a court order;
  • To the person whose record has been expunged, or his or her counsel; and
  • To members of law enforcement or criminal justice agencies, prosecutors or judges for the purpose of defending against civil litigation resulting from wrongful arrest or other civil litigation, and the expunged record is necessary to the defense.

In addition to providing for confidentiality of expunged records, the new law expressly states that "no person whose record of arrest or conviction that has been expunged shall be required to disclose to any person that he was arrested or convicted of the subject offenses, or that the record of the arrest of conviction has been expunged." As a result, job applicants with expunged records may legally answer "no" in response to employment application questions concerning expunged arrests or convictions.

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Dollar General Coughs Up $4M to End Background Check Suit

Discount retail chain Dollar General has agreed to pay $4 million to settle a proposed class action claiming it didn't properly notify more than 200,000 job applicants they would be screened by background checks, a Virginia federal court filing revealed Wednesday.

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Background Screening Company Adopts Revised Procedures in Cooperation with EEOC

The EEOC and The Cole Group have reached an agreement reflecting the job applicant screening company's implementation of revised policies and practices to ensure that its pre-employment screenings comply with the Americans with Disabilities Act of 1990 (ADA), the Genetic Nondiscrimination Act of 2008 (GINA), and the anti-retaliation provisions of the federal civil rights laws enforced by the EEOC. The Cole Group screens applicants for hundreds of companies nationwide.

It has assured that a job applicant's medical history and any civil rights, personal injury, or workers compensation claims made by an applicant against his or her prior and present employers are not inquired into and will not be disseminated to prospective employers.

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Wal-Mart Stores East Will Pay $72,500 to Settle EEOC Disability Discrimination Lawsuit

The EEOC announced that Wal-Mart Stores East, L.P., will pay $72,500 and provide significant equitable relief to settle a federal disability discrimination lawsuit. According to the EEOC's suit, Wal-Mart offered Laura Jones a job as an evening sales associate, contingent on Jones passing a urinalysis test for illegal drugs. After Jones advised that she cannot produce urine because she has end-stage renal disease, the assistant store manager told her to ask the designated drug testing company about alternate tests, the EEOC said. According to the complaint, Jones went to the drug testing facility the same day and learned that the facility could do other drug tests if the employer requested it. Jones relayed this information to the Wal-Mart assistant store manager, but management refused to order an alternative drug test. Jones's application was closed for failing to take a urinalysis within 24 hours.

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Party City to "Ban The Box" During Hiring Process After Attorney General's Investigation

Party City has reached a settlement with New York’s Attorney General's office to "Ban the Box" during their hiring process. Attorney General Eric Schneiderman said in a statement that the company, which employs 5,000 people in 49 stores across the state, must change its hiring policies as a result of the settlement to:

  • Conduct training for employees to ensure fair consideration of all job applicants;
  • Conduct outreach and recruiting efforts with non-profits that specialize in job training and rehabilitation of individuals with criminal records;
  • Reconsider applications from hundreds of former applicants who may have been denied employment opportunities unlawfully;
  • Submit periodic reports to verify its continued compliance with the law for a period of three years; and
  • Pay a $95,000 penalty

"An applicant's criminal history does not give employers a right to slam the door in his face," Schneiderman said, adding that employment opportunities reduce recidivism.

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Atlanta City Council approves Ban the Box legislation

The Atlanta City Council approved an ordinance on Monday, Oct. 6 expanding efforts to eliminate discrimination against potential applicants for jobs with the City of Atlanta who have prior criminal convictions.

The City of Atlanta's current application process no longer requires an applicant to reveal a prior conviction on an application, the legislation officially makes it city policy except when state and/or federal laws require criminal background investigations for certain positions, including positions that involve work with children, positions in law enforcement, and other sensitive positions.

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Ban the Ban-the-Box? Proposed Law May Clarify Background Check Dilemma in Regulated Industries

Congress has proposed legislation that protects certain employers when they seek to comply with the laws that regulate their industries. The "Certainty in Enforcement Act of 2014" would prevent the EEOC, state agencies and plaintiffs' attorneys from claiming that certain employers are engaged in an unlawful employment practice when acting in accordance with federal, state or local laws. The proposed legislation notes that covered employers may include, but are not limited to, those engaged in health care, childcare, in-home services, policing, security, education, finance, employee benefits, and fiduciary duties.

Rather than engaging in a preemption-style evaluation and analyzing whether one federal or state law trumps another regarding these background check-related issues, employers may want to seek legal guidance to help them evaluate the risks. Having the right processes in place can go a long way to helping employers maximize their defenses to hiring-related claims.

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St. Pete proposes "Ban the Box" policy and $12.50 minimum wage

St. Pete Mayor Rick Kriseman is on a roll trying to improve economic conditions for some of the city's poorest neighborhoods. Today he announced another effort, but this time one that could benefit the entire city. Beginning Jan. 1, St. Pete will join nearly 70 other cities including Tampa in "banning the box." That is the box on applications for city jobs that asks prospective employees whether they have a criminal record.

The change in city policy will affect only city jobs. It does not mandate private sector jobs to follow suit. The policy also will not exclude background checks for city jobs and they will still be mandated for any public safety positions. Those checks will just be looked at later in the process.

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New York Legalizes Use of Medical Marijuana

New York is now the 23rdstate to adopt legislation legalizing the use of marijuana for medical use. Under the state's new law, a patient who has been certified by a healthcare provider to use medical marijuana will register with the New York State Department of Health and receive a patient identification card, with which they can obtain medical marijuana from no more than five certified organizations licensed to operate dispensaries.

Unlike most state laws to this effect, however, the New York law specifically classifies individuals validly prescribed medical marijuana as "disabled" under the state human rights law, thus, presumably requiring New York employers to provide reasonable accommodations for medical marijuana users. To be covered, individuals must suffer from a "serious condition," defined as having one of the enumerated "severe debilitating or life-threatening conditions."

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