January

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

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

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