March

The ministry of information technology and telecommunication has published a deeply misguided notification announcing new rules to “protect” citizens against “online harm”. The rules are an egregious violation of fundamental human rights, including freedom of speech and the right to the Internet. For a government that has made much show of its digital mindset and cashed in on highly publicised initiatives for a “Digital Pakistan”, this move is in direct violation of all it claims to stand for.

Considering how backward the country otherwise is vis-a-vis the fourth industrial revolution, Pakistan has been remarkably adept at harnessing digital technologies for surveillance and psychological warfare. In previous op-eds, I have discussed the systematic use of human and bot-run accounts on social media for surveillance and harassment, as well as the exploitation — often by the state — of data footprints users leave online.

 

The citizen “protection” rules are the most recent in a long chain of events that illustrate how the state is expanding its surveillance apparatus. The inception of Pakistan’s e-surveillance programme can be traced back to the evolution of Nadra into a national registry and centralised database of all citizens.

Under the pretence of promoting security and access to services, Nadra has relentlessly crept deeper into our lives. The CNIC number is now linked to nearly everything we do, from banking services and purchasing activity, to SIM cards and travel, providing the state a holistic view of our lives.

The launch of the FBR-Nadra portal last year was a reminder that the state has no qualms in using the data it has collected as an intimidation tactic. To log into the portal, I first had to pay an application fee to access my own data. In addition to several other data points, the portal displays an account of my travel history and mobile phone billing history. My profile also states that “additional information is being collected”. There is no guidance on what this information is, why it must be collected, and how I can control my data.

This data has been collected without our informed consent. “Informed” is the operative word as, even when we agree to share our data, there is no way of knowing who it will eventually be shared with and what use it will be put to. Moreover, the word “consent” loses its meaning where non-compliance means exclusion from critical services. The portal is a failure as a solution to Pakistan’s tax collection problems. Its only achievement so far is as a shock-and-awe tactic instilling fear in a citizenry that has no right to privacy.

The Safe Cities project is an extension of this massive surveillance infrastructure. The Nadra website boasts the installation of “intelligent video surveillance” through which “the population and their activities are monitored”. The Safe Cities video footage integrates with Nadra’s database, allowing for facial recognition. The HEC is now implementing a version of this on campuses all over the country, through the Smart and Safe Campus projects.

The use of biometrics is also expanding, with fingerprints collection and facial and iris recognition technologies. In addition to their use by Nadra, financial inclusion and social protection programmes including BISP make use of biometrics for verification of beneficiaries. While there is a case to be made for the use of identification technologies to enable citizens to access social services, this must go hand-in-hand with strong legal frameworks for data protection and privacy.

The recent case of BISP fraud and the removal of “undeserving beneficiaries” from the database will serve as yet another justification for collecting more and more data. Citizens will continue to be treated with suspicion and reduced to data points, as they give up their right to privacy in attempts to prove their innocence and worthiness to avail basic rights.

For the vulnerable and poor who may have more immediate needs, many believe that privacy is not a concern; it is thought to be a “first world problem”. Research conducted by CGAP in India and Kenya has shown that the poor are particularly vulnerable to “lax data policies” and, contrary to popular belief, value their privacy and are willing to pay a premium to preserve it.

The citizen protection rules also show that the government is continuing on the misguided path of data localisation — demanding that social media companies store Pakistani users’ data in servers located in-country. Considering Pakistan’s track record with data protection and cybersecurity, this is alarming. In addition to surveillance and misuse of data by the state, reported data breaches such as the NSA accessing Nadra records are enough to believe that Pakistani authorities cannot be trusted with our data.

Data protection and privacy laws must be a cornerstone of the Digital Pakistan policy. Without a strong regulatory framework and legal protection, Pakistan’s citizens are, at best, excluded from the benefits of the Internet and, at worst, at serious risk of violation of their fundamental rights.

The Digital Pakistan initiative, launched by Prime Minister Imran Khan amidst much pomp and show, recognises the Internet as “a fundamental right” and promises “to ensure every Pakistani has access to the Internet”. However, moves such as the citizen protection rules make the initiative appear as a publicity campaign rather than a genuine attempt to harness the democratising power of the Internet for the good of the Pakistani people.

The protagonist of the Digital Pakistan initiative, Ms Tania Aidrus, with her experience at leading technology institutions, should be advising IT policymakers against such misguided policy changes. It is hoped she will help develop a more strategic and meaningful vision of how digitisation can empower the people of Pakistan rather than be used as a weapon against them.

An Indiana lawmaker wants to close a loophole involving background checks at Indiana day care facilities for children.

News 8 talked to parents who say they were shocked to hear that the proposal was not already a requirement.

There are a lot of day care facilities that require criminal background checks for all of their employees, but the state law only requires that some people get those criminal background checks.

Sarah Bowles is a mom who has worked in various day care facilities in central Indiana. She says she decided after years of working in those facilities to stay home with her daughter.

“Just knowing what goes on in those facilities and the turnover is way higher than I think most people realize. Yes, there are criminal background checks ran but I think this bill would be definitely for the better,” Bowles said.

Current Indiana law requires background checks for workers in direct contact with children. House Bill 1246 would expand those checks to cover all workers in a licensed day care.

Rep. Chris May, a Republican from Bedford, authored the bill. May said, “So what this legislation will do is ensure all employees and volunteers of a child care facility and center, whether that is at the center or at home, would undergo that criminal history background check.”

Bowles was surprised to hear about the new bill. The mom said, “I actually did not know that that was not already the requirement. That is shocking and scary.”

The state representative said, “The legislation quite honestly just eliminates a loophole that currently allows some who work in proximity of the adolescents to simply bypass this important background check.”

The bill does not currently include any funding. Day care providers would be forced to cover the cost of the background checks.

“Cameras are great, background checks are great for 80 percent of the people, but I want every person who comes into contact with my children to have a background check,” Bowles said.

The bill has already passed the House. A Senate committee is scheduled to take it up next week.

This bill covers only state-licensed day cares and would not apply to most day cares run by churches.

If it passes, the bill will go into effect on July 1.

As employers face a critical talent shortage amongst historically low unemployment rates, organizations are turning to nontraditional methods to source workers. While it’s not uncommon for a job listing to include a set of requirements for the position, what if those prerequisites were limited only to the ability to lift over 50 pounds, stand for eight hours, and be authorized to work the United States?

No “previous experience required.” No “college degree preferred” or minimum GPA necessary. No verifiable qualifications demanded. That’s what candidates for employment at The Body Shop’s retail stores will find in store for them come this summer.

Open Hiring          

Open hiring policies abandon traditional pre-employment screening, such as criminal background checks, drug tests, and verifications of employment, education, and references in favor of, “replacing scrutiny with trust.” In most cases, there's not even an interview – any interested worker is eligible for hire.

While the unemployment rate in the U.S. lingers around 3.6%, that still represents an estimated 5.9 million people who are without a job. And for many of these individuals, their past histories, which may include criminal convictions, present barriers from getting a paycheck. 

In fact, one in three adults in America, or an estimated 77 million individuals, have a criminal record, and around 2.2 million individuals are currently inmates in the federal or state penitentiary systems. What’s more, criminal recidivism rates show that about four in nine ex-offenders will re-offend at least once during their first year out of prison.  

And that’s where open hiring fills a gap. 

From Greyston To The Body Shop

Since 1982, New York-based Greyston Bakery has utilized an open hiring model to “accept an individual based on current actions and future potential, not judge them on their past." Open hiring hopes to curb criminal recidivism by getting people employed.

Greyston maintains a waiting list of individuals wanting a job. When a position opens up, the person at the top of the list gets invited to complete a paid internship at their bakery. Upon successful completion of the course, a full-time job is theirs. It's that simple. Around 75% of Greyston’s bakery staff, which comprises close to 80 workers, have come through their open hiring model.

After consulting with Greyston and piloting open hiring at their distribution center in North Carolina, The Body Shop recently announced that it will adopt an open hiring model for its retail associates in the United States. Much like Greyston, candidates seeking employment at The Body Shop will be hired on a first-come-first-served basis, absent background screening, or drug testing.

By comparison to Greyston, the deployment of open hiring at The Body Shop is massive. The Body Shop employs around 1,000 retail workers during peak seasons, with 10,000 employees in total and annual revenue close to $1 billion dollars. And with size comes greater risk.

Negligent Hiring

Employers must act reasonably when hiring, supervising and retaining workers. Negligent hiring occurs when an employer fails to verify that a prospective employee may present a danger to the organization.

Negligent hiring claims can be brought by an individual when an employer fails to screen a worker adequately, and that worker subsequently harms someone else.

In making a negligent hiring claim, the harmed individual argues that the business knew or should have known their worker's background history before hiring them.

While states have defined the elements necessary to prove a negligent hiring claim, at their most basic, the harmed party must establish:

1. The employer owed a “duty of care” to others when hiring the worker
2. The employer breached that duty
3. The breach was the cause of the injury or harm
4. The injury or harm was reasonably foreseeable
5. Damages resulted from the employer’s inaction.

The bottom line: If an employer is not diligent in assessing a worker's background and that worker harms someone, that employer could be on the line for the worker's actions.

And employers are responsible for the ongoing supervision of their workers and ensuring that their retention does not indicate foreseeable harm to the organization's workforce or its clients.  

Case In Point

Successful negligent hiring claims are disruptive to business and are avoidable. The number of lawsuits filed against organizations are numerous, with settlements averaging more than $1 million, and court awards often exceeding several million dollars. 

Take the case of a healthcare provider who failed to perform a background check on its employee who subsequently murdered a client and his grandmother.

A criminal background check would have revealed six felony convictions. Instead, two individuals are dead, and the company paid out $26.5 million to the Plaintiff, including $18 million in punitive damages.

In the manufacturing space, an employee shot and killed a coworker as a result of a workplace confrontation. If the employer had conducted a criminal background check and requested a reference check of former employers, the employer would have learned that the Defendant had multiple criminal convictions, including carrying an illegal weapon on the job site. The employer was found liable for negligent hiring, supervision, and retention. 

And in retail, the actions range the gamut from allegations of sexual assault of a child customer to incidents resulting in the murder of coworkers. In all cases, the employer is held accountable for the actions of their employee if they could have reasonably foreseen the consequences of their employee's actions.

Balancing Inclusivity With Risk

While open hiring models are admirable, they introduce risk to an organization that comes with legal liabilities associated with negligent hiring. Directly inquiring into and verifying an individual's past can help to reduce an employer's risk of a negligent hiring claim.

Some states have even passed legislation that protects organizations from negligent hiring claims when hiring ex-offenders. And most employers are amenable to working with individuals with criminal records. 

Here are some tips to avoid a negligent hiring claim while supporting inclusive hiring:

Eliminate barriers in the pre-hire process

Ban the Box measures delay when an employer can inquire into a candidate’s criminal history. In some cases, they may also include special notice requirements and may also limit the types of criminal information that an employer can consider when making their suitability decision.

Even if you are not in one of the 34 jurisdictions in the U.S. that have enacted a ban the box law, you might consider removing the criminal history question from your job postings and application so that all individuals are encouraged to apply regardless of their criminal history.

Trust but verify

Ask candidates to disclose their former employment and education history. Verify that information looking for gaps in a candidate's past. Engage in an open discussion with the candidate to understand how life events have shaped their work history; professional references that solicit substantive information can help develop a picture of the individual as a worker.

Equitably assess criminal history

Employers should avoid blanket policies that exclude individuals from hire. Instead, employers should create policies that promote fair hiring practices.

In particular, employers are encouraged to following the Equal Employment Opportunity Commission’s guidance and consider:

• The nature and gravity of the crime
• The time that has passed since the crime or completion of the sentence
• The relationship of the crime to the worker’s ability to perform the job without reasonable cause of harm to the organization

Screen proportional to role

Not all workers introduce the same amount of risk to an organization. Employers should consider tailoring their background screening practices to align with the roles their workers will fill.  Identity verifications and reviews of previous employment and references should be a must for all workers. Criminal record searches and drug testing may be relevant for some positions but not others.

And industries like energy, finance, healthcare, and transportation must meet specific minimum background check requirements as identified within the regulations that govern them.

· Benchmark to avoid negligence

Remember that negligence results when an organization falls below a reasonable standard of care. Employers should network with other businesses in their industry to set a baseline for screening. Falling below that baseline could be evidence of negligent hiring practices. 

Good Intentions May Lead To Bad Consequences

While open hiring models are a novel way to approach recruiting, employers should proceed cautiously and understand the legal risks associated with adopting an open hiring model.

Employers can still foster inclusivity and embrace change for the better while taking reasonable measures to protect their workforce and guests through effective background screening.