August



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| Health & Social Care
August 21, 2018
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Are Criminal Background Checks for Nursing Home Residents Coming?

A jury found that a nursing home and its affiliates were liable for the 2013 sexual assault of a resident by another resident.  Evidence was presented that the facility knew the assailant had previously been convicted of sexual assault, targeted the victim because she suffered from dementia, threatened to rape a caregiver, and no longer needed the services of the facility.

Even though the nursing home was instructed by the Lancaster County Office of Aging (OOA) in 2010, to initiative a care plan, the assailant was placed in a room just two doors down from the victim's room. The plaintiff, who since has passed on, was awarded $7.5 million in damages against the nursing home, finding that the facility and its parent company were 85 percent at fault for the victim's injuries and damages.

Pennsylvania does not require background checks of nursing home applicants, but it does require employee criminal background checks under the Older Adults Protective Services Act (OAPSA).

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| Retail & PCI-DSS
August 21, 2018
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The Spokeo Chronicles: Another Tentative Background Check Win for Kroger Subsidiary

A magistrate judge in the U.S. District Court for the District of Oregon has made recommendations to dismiss both Fair Credit Reporting Act (FCRA) allegations against Kroger subsidiary Fred Meyer.

The class action alleges that the retailer's background check process for prospective employees violates the Act by failing to properly disclose that a report will be run and failing to comply with the statute's procedural requirements before taking adverse action against an applicant. The judge found that the disclosure satisfied the FCRA's stand-alone requirements and rejected the contention that Fred Meyer's pre-adverse action notice violates the FCRA.

In addition, the judge found that the suit lacked Article III standing to pursue his pre-adverse action claim.

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| Education
August 21, 2018
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Company Fired Employee for Participating in Treatment for Drug Addiction

Foothills Child Development Center was found to have violated federal law under the Equal Employment Opportunity Commission (EEOC) when it terminated employee Leon Dabrowski, after he disclosed his participation in a supervised medication-assisted treatment (MAT) program.

The afterschool teacher was hired to work at the Easley, S.C., facility, but was fired just 30 minutes into his first day of employment due to the use of Suboxone (an opiod dependence treatment).  Foothills is required to pay Dabrowski $5,000 and also has entered into a five-year consent decree, which requires the company to amend its written drug use policy to include a clear and specific exclusion to the policy for individuals who use legally-obtained prescription medication in a lawfully prescribed manner.

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