November

"Schrems will take part in the breakout session, ""Safe Harbor Postmortem: Schrems Reflects,"" during the IAPP Europe Data Protection Congress in Brussels.

He 'll be joined by European Parliament Senior Policy Advisor Ralf Bendrath, American Express Global Privacy Officer Kasey Chappelle, Hogan Lovells Partner Eduardo Ustaran, CIPP|E, and the IAPP 's Omer Tene. It will be very hard to come up with a solution that addresses all problems identified by the Court, given the U.S. position. It also seems questionable if a ""Safe Harbor 2.0"" will have real benefits for U.S. controllers in practice compared to transfer methods under Art 26 of Directive 95|46.

Minding that the two parties have debated for two years to not even get the very weak ""13 recommendations"" program by the European Commission done, it seems a switch to ""alternative"" transfer methods under Art 26 will be more reasonable than hoping for a Safe Harbor 2.0."

On March 2, the plaintiff's counsel in Brown v. Delhaize America, LLC submitted an unopposed motion for preliminary approval, seeking Court approval of another FCRA class action settlement. Employers should treat this settlement as another reminder to verify their compliance with the FCRA. According to the parties' settlement paperwork, the Brown case involved two claims that appear frequently in FCRA-based background check litigation. In Brown, the plaintiff claimed that the defendants failed to provide class members with a clear and conspicuous disclosure, consisting solely of the disclosure that a consumer report would be obtained for employment purposes, prior to obtaining the consumer report. After the defendants filed a motion to dismiss and the parties engaged in a two-day mediation, the parties reached a $3 million settlement.

Earlier this year, the New York City Council passed two laws which place limitations on an employer's ability to use background checks including credit checks in employment decisions: the Fair Chance Act (FCA) and the Stop Credit Discrimination in Employment Act (SCDEA). On September 28, 2015, the New York City Commission on Human Rights' (NYCCHR) staff attorney, Paul Keefe, held a question and answer forum for management counsel and employers to inquire about how the NYCCHR will interpret and apply these laws. Employers are encouraged to monitor for upcoming proposed rules, additional guidance on the FCA (including the sample individualized assessment form to be issued), and keep an eye out for updates on the Frequently Asked Questions section of the NYCCHR's website. These new interpretations likely will require employers to consider revising their processes and forms to comply.