New law limits credit checks for New York City employers

New York City has joined the growing list of employers placing limits on credit checks. On April 16, the City Council overwhelmingly voted in favor of a bill prohibiting the use of credit checks in most employment situations. Mayor Bill De Blasio signed the legislation on May 6, amending the city’s Human Rights Law to make the use of credit history for hiring and other employment purposes, with certain exceptions, an unlawful discriminatory practice. Set to take effect on September 3, 2015, the law will have a sizable impact on employers in New York City. A review of current policies and procedures to determine if any exceptions apply is key, while employers with a statewide presence should consider whether to continue credit checks in other locations where they remain legal.

As defined by the law, “consumer credit history” means an individual’s credit worthiness, credit standing, credit capacity, or payment history, as indicated by: (a) a consumer credit report; (b) credit score; or (c) information an employer obtains directly from the individual regarding (1) details about credit accounts, including the individual’s number of credit accounts, late or missed payments, charged-off debts, items in collections, credit limit, prior credit report inquiries, or (2) bankruptcies, judgments or liens. The law further provides that “a consumer credit report shall include any written or other communication of any information by a consumer reporting agency that bears on a consumer’s creditworthiness, credit standing, credit capacity or credit history.”

Importantly, employers are prohibited not just from the request or use of credit history for applicants, but also from using credit history as a factor in employment decisions for current employees in “compensation, or the terms, conditions or privileges of employment.”

When initially introduced, the proposal featured no exceptions to the ban on credit checks. But over the course of the past year, limited exceptions were added to the bill. As enacted, the legislation permits the use of credit checks for prospective employees of broker-dealers who must register with the Financial Industry Regulatory Authority (FINRA) as well as for police officers and other public officials in a position involving a “high degree of public trust.” Additional exceptions allow a review of credit history when required by state or federal law or regulations; for positions when an employee must possess a security clearance or has “regular access” to intelligence or national security information; for non-clerical positions with access to “trade secrets;” for computer security positions when the employee’s duties include the ability to modify digital security systems; and for employees with signing authority over third-party funds or assets greater than $10,000 or fiduciary responsibility to an employer with the authority to enter into financial agreements of $10,000 or more.

The law permits individuals to file a complaint of discrimination with the New York City Commission on Human Rights within a one-year period or a complaint in court, with a three-year statute of limitations. Remedies include back pay, reinstatement, compensatory and punitive damages, and attorney’s fees and costs.

New York City joins 12 other jurisdictions that have prohibited credit checks in employment-related decisions, including the city of Chicago as well as California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont, and Washington.

Read the New York City legislation here.

June 12th, 2015|Legislation|

Beware of loopholes in reporting on securities brokers

When considering the track record of a securities broker or dealer, investors should be cognizant of loopholes in background reporting.

The Financial Industry Regulatory Authority (FINRA) oversees the regulation of brokers and operates BrokerCheck, an online database that contains disciplinary records of registered brokers. But a review by the Wall Street Journal found that BrokerCheck is sorely lacking a wealth of information about registered brokers, some of which can be found in the records of state regulators. At least 38,400 brokers have regulatory or financial red flags that appear only on state records, according to the WSJ’s investigation; of those brokers, at least 19,000 had clean BrokerCheck records. One significant area omitted by FINRA: internal reviews.

The WSJ identified 4,346 brokers with one or more internal reviews reported on their state records but not on BrokerCheck. Other regulatory red flags not spotted on FINRA’s database: personal bankruptcies filed more than 10 years ago, judgments and liens that have been satisfied, and certain employment terminations.

FINRA’s records do include complaints against brokers, regulatory actions, terminations for cause, and personal bankruptcies filed within the last decade, which the agency says is consistent with the Fair Credit Reporting Act. But in light of the gaps – and a proposal from FINRA to the Securities and Exchange Commission to expand the obligations of financial institutions with regard to the background screening of applicants ( – investors should consider checking state regulatory records to form a more complete picture of a broker’s history.

In response to the WSJ’s inquiry, FINRA launched a review of its database and said the agency is studying the current rules about the information disclosed on BrokerCheck. The agency is also attempting to patch a separate loophole by coordinating its efforts with state insurance regulators. Following reports that insurance and securities regulators struggle to share data – and that individuals take advantage of the gap by continuing to sell insurance products despite losing a securities license, for example – FINRA vowed to take action. Beginning this month, the agency said it will provide a monthly report of its disciplinary actions against securities brokers not only to state securities regulators but state insurance regulators as well.

January 29th, 2015|Educational Series|

SEC considers background check rule proposed by FINRA

Financial institutions could face expanded obligations to conduct background screening of applicants for registration pursuant to a rule proposed by the Financial Industry Regulatory Authority (FINRA) to the Securities and Exchange Commission (SEC).

As currently drafted, the National Association of Securities Dealers (NASD) Rule 3010(e), the Responsibility of Member to Investigate Applicants for Registration, provides that a firm “must ascertain by investigation the good character, business reputation, qualifications and experience of an applicant before the firm applies to register that applicant with FINRA,” the regulator explained.

Seeking to “streamline and clarify members’ obligations relating to background investigation, which will, in turn, improve members’ compliance efforts,” FINRA proposed the addition of background checks to the Rule for the SEC’s consideration.

The change would mandate that firms verify the accuracy and completeness of the information in an applicant’s Form U4 (Uniform Application for Securities Industry Registration or Transfer) for first-time applicants as well as transfers. Written procedures for conducting the background check – including a public records search – must also be established.

While the rule is prospective, FINRA announced that it would take a look at currently registered representatives. The financial regulator intends to begin its efforts with a search of all publicly available criminal records for the roughly 630,000 registered individuals who have not been fingerprinted within the last five years; going forward, FINRA will periodically review public records “to ascertain the accuracy and completeness of the information available to investors, regulators and firms,” the agency said.

To read the Federal Register notice: click here.

December 3rd, 2014|Fraud, Risk Management|

FINRA wants to increase awareness of its BrokerCheck and make more information public

FINRA’s online investor tool for researching the professional backgrounds of firms and brokers, the BrokerCheck, is accessible to all members of the public from the front page of its website. In a revised proposal, which includes changes made in response to comments regarding a prior proposal to amend FINRA Rule 2267 (Investor Education and Protection), firms would be required to include a readily apparent reference and hyperlink to the BrokerCheck on each website that is available to retail investors, and in online retail communications with the public that include a professional profile of, or contact information for, an associated person, subject to specified conditions and exceptions.

FINRA is also seeking comments (until September 2, 2014) on a proposal to make publicly available, through FINRA’s website, a repository of Form 211 information. Firms are required to complete this form to demonstrate compliance with the specific information review requirements under SEA Rule 15c2-11 prior to initiating a quotation in a non-exchange-listed security.

July 9th, 2014|Educational Series|

FINRA has some common sense advice for avoiding investment scams

  1. Guarantees: Be suspect of anyone who guarantees that an investment will perform a certain way. All investments carry some degree of risk.
  2. Unregistered products: Many investment scams involve unlicensed individuals selling unregistered securities, ranging from stocks, bonds, notes, hedge funds, oil or gas deals, or fictitious instruments, such as prime bank investments.
  3. Overly consistent returns: Any investment that consistently goes up month after month, or that provides remarkably steady returns regardless of market conditions, should raise suspicions, especially during turbulent times. Even the most stable investments can experience hiccups once in a while.
  4. Complex strategies: Avoid anyone who credits a highly complex investing technique for unusual success. Legitimate professionals should be able to explain clearly what they are doing. It is critical that you fully understand any investment that you are considering, including what it is, what the risks are and how the investment makes money.
  5. Missing documentation: If someone tries to sell you a security with no documentation, such as a no prospectus in the case of a stock or mutual fund, and no offering circular in the case of a bond, he/she may be selling unregistered securities. The same is true of stocks without stock symbols.
  6. Account discrepancies: Unauthorized trades, missing funds or other problems with your account statements could be the result of a genuine error or they could indicate churning or fraud. Keep an eye on account statements to ensure that activity is consistent with your instructions, and know who holds your assets. For instance, is the investment adviser also the custodian? Or is there an independent third-party custodian? It can be easier for fraud to occur if an adviser is also the custodian of the assets and keeper of the accounts.
March 28th, 2014|Educational Series, Fraud|

FINRA issues investor alert about calls from brokerage firm imposters

The Financial Industry Regulatory Authority (“FINRA”) issued a new alert on August 6, 2013 labeled as Cold Calls from Brokerage Firm Imposters—Beware of Old-Fashioned Phishing to warn investors of calls from scammers claiming to be representatives of at least one well-known brokerage firm. In this latest twist on phishing scams, the fraudsters are cold-calling investors claiming to offer information about certificates of deposit with yields well above the best rates in the market in an attempt to get potential victims to divulge their personal or financial account information.

FINRA is reminding investors who receive unsolicited calls to never provide personal information or authorize any transfer of funds to any unknown person, and encourages anyone who believes that he/she has been scammed to file a complaint using its online Complaint Center or send a tip to FINRA’s Office of the Whistleblower.

August 7th, 2013|Fraud|

Disciplinary action serves as reminder of due diligence requirement in Reg. D offerings

A recent disciplinary action reaffirmed FINRA member firms’ obligations to conduct a reasonable investigation of the issuer and the securities it recommends in offerings made under the SEC’s Regulation D, commonly known as private placements. Regulation D provides exemptions from the registration requirements of Section 5 under the Securities & Exchange Act, but it does not exempt these transactions from the antifraud provisions of the federal securities laws. A broker-dealer thus has a duty—enforceable under federal securities laws and FINRA rules—to conduct a reasonable investigation of the securities it recommends. Moreover, any broker-dealer that recommends securities offered under Regulation D must meet the suitability requirements under NASD Rule 2310, and comply with the advertising and supervisory rules of FINRA and the SEC.

A broker-dealer’s reasonable investigation must be tailored to each Regulation D offering, as its scope will depend on factors such as the sophistication of the investors, the broker-dealer’s affiliation with the issuer, and other facts and circumstances of the offering. The investigation, at a minimum, should include background checks of the issuer and its management, the business prospects of the issuer, the assets held or to be acquired by the issuer, the claims being made, and the intended use of the proceeds.

A firm that engages in Regulation D offerings also must have supervisory procedures under NASD Rule 3010 that are designed to ensure that its personnel and representatives conduct an inquiry that is sufficient to comply with the legal and regulatory requirements; that they perform the suitability analysis required by NASD Rule 2310; that they qualify the investors’ eligibility to purchase the securities; and that they abide by the antifraud provisions of the federal securities laws and FINRA rules regarding the preparation and distribution of offering documents or sales literature. And a broker-dealer has a further duty to adequately investigate any information located during the investigation that may be considered a “red flag.”

August 7th, 2013|Employment Decisions, Fraud|

FINRA is spot-checking social media communications

In posting a Targeted Examination Letter (often referred as a sweep letter) on its website earlier this month, FINRA invoked Rule 2210(c)(6), which states that each FINRA firm’s written (including electronic) communications are subject to a periodic spot-check procedure.

FINRA’s sweep letter seeks, among other things, an explanation of how the firm is using social media at the corporate level in conducting its business; the identity of all individuals who post and/or update content; how the firm’s registered representatives and associated persons generally use social media to conduct the firm’s business; written supervisory procedures concerning the production, approval and distribution of social media communications; the measures to monitor compliance with the firm’s social media policies; and a tabular list of the firm’s top 20 producing registered representatives (based on commissioned sales) who used social media for business purposes to interact with retail investors.

June 27th, 2013|Legislation|

13 Things to Know About Investing

The Securities & Exchange Commission (the “SEC”) recently released an educational bulletin to help investors make informed financial decisions and avoid common scams. Its 13 points include:

  1. Check the investment professional’s background.
    Details about experience and qualifications are available through the Investment Adviser Public Disclosure website and FINRA BrokerCheck.
  2. Be mindful of fees associated with buying, owning, and selling an investment product.
    Expenses vary from product to product, and even small differences in these costs can translate into large differences in earnings over time. An investment with high costs must perform better than a low-cost investment to generate the same returns.
  3. Diversification can help reduce the overall risk of an investment portfolio.
    By picking the right mix, you may be able to limit losses and reduce the fluctuations of investment returns without sacrificing too much in potential gains. Some investors find that it is easier to achieve diversification through ownership of mutual funds or exchange-traded funds rather than through ownership of individual stocks or bonds.
  4. Paying off high-interest debt may be the best “investment” strategy.
    Few investments pay off as well as, or with less risk than, eliminating high-interest debt on credit cards or other loans.
  5. Promises of high returns, with little or no associated risk, are classic warning signs of fraud.
    Every investment carries some degree of risk and the potential for greater returns comes with greater risk. Ignore the so-called “can’t miss” investment opportunities or those promising guaranteed returns or, better yet, report them to the SEC.
  6. Any offer or sale of securities must be either registered with the SEC or exempt from registration.
    Otherwise, it is illegal. Registration is important because it provides investors with access to key information about the company’s management, products, services, and finances.
  7. Do not invest in a company about which little or no information is publicly available.
    Always check whether an offering is registered with the SEC by using the SEC’s EDGAR database or contacting the SEC’s toll-free investor assistance line at (800) 732-0330.
  8. Investing heavily in shares of any individual stock can be risky.
    In particular, think twice before investing heavily in shares of your employer’s stock. If the value declines significantly, or the company goes bankrupt, you may lose money and there’s a chance you might lose your job, too.
  9. Active trading and some other common investing behaviors actually undermine investment performance.
    According to researchers, other common investing mistakes include focusing on past performance, favoring investments from your own country, region, state or company, and holding on to losing investments for too long and selling winning investments too soon.
  10. Con-artists are experts at the art of persuasion, often using a variety of influence tactics tailored to the vulnerabilities of their victims.
    Common tactics include phantom riches (dangling the prospect of wealth, enticing with something you want but can’t have), source credibility (trying to build credibility by claiming to be with a reputable firm or to have a special credential or experience), social consensus (leading you to believe that other savvy investors have already invested), reciprocity (offering to do a small favor for you in return for a big favor) and scarcity (creating a false sense of urgency by claiming limited supply).
  11. Some investments provide tax advantages.
    For example, employer-sponsored retirement plans and individual retirement accounts generally provide tax advantages for retirement savings, and 529 college savings plans also offer tax benefits.
  12. Mutual funds, like other investments, are not guaranteed or insured by the FDIC or any other government agency.
    This is true even if you buy through a bank and the fund carries the bank’s name.
  13. The key to avoiding investment fraud is using independent information to evaluate financial opportunities.
    Many investors may have avoided trouble and losses if they had asked questions from the start and verified the answers with sources outside of their family, community, or group. Whether checking the background of an investment professional, researching an investment, or learning about new products or scams, unbiased information is a significant advantage for investing wisely. 
February 13th, 2013|Educational Series, Fraud|

Broker-dealers fall short in knowing their clients

It looks like broker-dealers are failing in their due diligence efforts on clients, as required by FINRA’s new Rule 2090. (FINRA is the largest non-governmental regulator of all securities firms doing business in the United States, and handles nearly every aspect of securities-related matters, from registering and educating industry participants, to writing and enforcing rules and the federal securities laws.)

According to several industry reports, the most violated rule this year has been a failure by broker-dealers to comply with FINRA’s know-your-customer obligations, now under Rule 2090 issued in July 2012. The rule, which is generally modeled after the former NYSE Rule 405(1), requires firms to use reasonable diligence regarding the opening and maintenance of every account in order to “know the essential facts concerning every customer.” The rule explains that “essential facts” are those required to:

  • effectively service the customer’s account;
  • act in accordance with any special handling instructions for the account;
  • understand the authority of each person acting on behalf of the customer; and
  • comply with applicable laws, regulations, and rules.

The know-your-customer requirements arise at the beginning of the relationship and do not depend on whether the broker has made a recommendation. Unlike the former NYSE Rule 405, Rule 2090 does not specifically address orders, supervision or account opening, which are areas that are explicitly covered by other rules.

In conjunction with this know-your-customer rule, FINRA has adopted transaction suitability Rule 2111, framed after the former NASD Rule 2310, which requires that a firm or associated person “have a reasonable basis to believe that a recommended transaction or investment strategy involving a security or securities is suitable for the customer, based on the information obtained through the reasonable diligence of the member or associated person to ascertain the customer’s investment profile.” According to FINRA, the measures constituting a reasonable diligence will vary depending on, among other factors, the complexity of and risks associated with the security or investment strategy and the firm’s or associated person’s familiarity with the security or investment strategy.

Rule 2111 further defines a customer’s investment profile, specifying that it includes, but is not limited to, the customer’s age, other investments, financial situation and needs, tax status, investment objectives, investment experience, investment time horizon, liquidity needs, risk tolerance, and any other information the customer may disclose to the member or associated person in connection with such recommendation. Accordingly, a broker must attempt to obtain and analyze a broad array of customer-specific factors, and also determine quantitative suitability if the broker has actual or de facto control over a customer account.

FINRA now makes it clear that a broker must have a firm understanding of both the product and the customer, and that the lack of such an understanding itself violates the suitability rule.

January 7th, 2013|Criminal Activity, Fraud|
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