legislation Archives

NOTICE OF UPDATES TO OUR TERMS AND CONDITIONS AGREEMENT, PRIVACY POLICY AND NEW GDPR NOTICE OF RIGHTS

Data privacy is our top priority at Scherzer International (“SI”). SI has undertaken diligent efforts to ensure our compliance with the GDPR which became effective May 25, 2018. Here are some of the things that we’ve done:

We added a clause about GDPR* compliance setting forth our respective obligations under this regulation to our Terms and Conditions Agreement (the “Agreement”), which now – unless superseded by another agreement – governs SI’s provision of background screening reports (“Reports”). The Agreement can be accessed here and is applicable to all Reports ordered from SI on or after May 25, 2018 (“Effective Date”).
We revised our Privacy Policy by adding information about our compliance with the GDPR requirements regarding the processing of personal data of individuals located in the European Economic Area (EEA) covered by the GDPR and made some wording changes for clarity. Please note that as before, our website does not use cookies or otherwise track any personal data.
We posted a “GDPR Notice” on our website, which informs EEA individuals of their rights in connection with their personal data.

There is no need for you to take any action. By continuing to interact with SI and using our services after the Effective Date, you agree to these terms.

Of course, you can opt out at any time, by contacting Joann Gold, Executive Vice President/Chief Compliance Officer, at jgold@scherzer.co.

WE APPRECIATE YOUR BUSINESS!

*“GDPR” means Regulation 2016/679 of the European Parliament and of the Council of the European Union, and the European Commission of April 27, 2016, on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data, known as the General Data Protection Regulation.

|European Union, International, Legislation, Privacy|

All judgments and tax liens to be removed from consumer credit reports

As reported last year, Equifax, Experian and TransUnion (the “NCRAs”) implemented enhanced standards for the collection and timely updating of public record data as part of the requirements of the National Consumer Assistance Plan (the “NCAP”) and accordingly, effective July 1, 2017, removed all civil judgments and the majority of tax liens from their databases.

The NCRAs are now going a step further to comply with the NCAP’s standards and to resolve pending litigation by removing all tax liens from consumer credit reports effective April 16, 2018. Bankruptcy records will continue to be reported.

|Judgment, Legislation|

Mid-Year Update on Employment Background Screening Legislation

“BAN-THE-BOX”

List of jurisdictions is growing

“Ban-the-box” measures, which generally prohibit employers from inquiring about a candidate’s criminal history (including performing background checks) until later in the hiring process, and impose significant compliance requirements, will soon be the norm rather than an exception. The list of localities that have enacted such legislation is growing fast and now includes Austin, Baltimore, Buffalo, Chicago, Columbia – MO, Los Angeles (enforcement started July 1, 2017), Montgomery County – MD, New York City, Philadelphia, Portland, Prince George’s County – MD, Rochester, San Francisco, and Seattle, and ten states (Connecticut, District of Columbia, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont (effective July 1, 2017)).

Although not labeled as “ban-the-box,” California’s Department of Fair Employment and Housing regulations (the “Regs”) that went into effect July 1, 2017 impose certain similar requirements when employers consider criminal history information in employment decisions. As reported in our previous blog, the Regs are substantially based on the enforcement guidance issued by the Equal Employment Opportunity Commission in April 2012, and prohibit employers from using a candidate’s criminal history in personnel decisions if such information will have an adverse impact on individuals that are in a legally protected class.

Amended rules for New York City’s “ban-the-box” take effect August 5, 2017

Nearly two years after the enactment of New York City’s Fair Chance Act (FCA), and without much fanfare, the City’s Commission on Human Rights published its amended rules that establish certain definitions and procedures, and clarify the comprehensive requirements of the FCA when using criminal history in employment decisions, and considering applicants for licenses, registrations, and permits.

CREDIT CHECK RESTRICTIONS

Eleven states (California – AB 22; Colorado – The Employment Opportunity Act; Connecticut – SB 361; District of Columbia – Fair Credit in Employment Amendment Act, Hawaii – HB 31 SD1; Illinois – HB 4658; Maryland – HB 87; Nevada – SB 127; Oregon – SB 1045; Vermont – Act No. 154 (S. 95); Washington – RCW 19.182 and RCW 19.182.020) and at least two localities (New York City – Stop Credit Discrimination in Employment Act, and Philadelphia – Bill No. 160072), have enacted laws that generally prohibit private employers from checking a candidate’s credit history, except in circumstances where a credit screen is justified by the position’s responsibilities or is required by law.

WAGE HISTORY INQUIRIES

Pay equity initiatives, which among their provisions include a ban on inquiries about a candidate’s wages, are gaining momentum nationwide. The following jurisdictions have enacted such laws and many more are considering similar measures: Delaware – HS1 (effective December 14, 2017); Massachusetts – Pay Equity Act (effective July 1, 2018); New York City – Intro 1253 (effective October 31, 2017); Oregon HB 2005 (effective December 1, 2019); Philadelphia – Fair Practices Ordinance: Protections Against Unlawful Discrimination (set to go into effect May 23, 2017 but now facing a legal challenge); Puerto Rico – Equal Pay Act (effective March 8, 2017); and San Francisco – Parity in Pay Ordinance (effective July 1, 2018).

Pending before California’s Senate is AB 168 that would prohibit employers from seeking an applicant’s salary history and impose significant penalties for violations. Notably, California already has a pay equity law, AB 1676, and although the law does not ban salary history inquiries, it does prohibit employers from using a candidate’s prior wages as the sole basis to justify a pay disparity.

WORK AUTHORIZATION VERIFICATIONS

Revised Form I-9

The USCIS released a revised version of Form I-9, Employment Eligibility Verification on July 17, 2017. Employers can use this revised version or continue using Form I-9 with a revision date of “11/14/16 N” through September 17, 2017. Beginning September 18, 2017, however, employers must use the new form (with the revision date of “07/17/17 N”).

Reminder to California employers

California’s AB 1065 that went into effect January 1, 2017 makes it unlawful for employers to:

request additional or different documents than those required under federal law to verify that an individual is not an unauthorized immigrant;
refuse to accept documents provided by the applicant that reasonably appear to be genuine;
refuse to honor documents or work authorization based on specific status or term that accompanies the authorization to work; and
attempt to re-investigate or re-verify a candidate’s authorization to work using an unfair immigration-related practice.

|Educational Series, Employment Decisions, Legislation, Risk Management|

New Employment Background Screening Legislation for 2017

“Ban-the-box”

“Ban-the-box” measures, which generally prohibit employers from inquiring about a candidate’s criminal history (including performing background checks) until later in the hiring process, and impose significant compliance requirements, will soon be the norm rather than an exception. The city of Los Angeles, with its new Fair Chance Initiative for Hiring ordinance, is just the latest to join the fast growing list of localities (Austin, Baltimore, Buffalo, Chicago, Columbia – MO, District of Columbia, Montgomery County – MD, New York City, Philadelphia, Portland, Prince George’s County – MD, Rochester, San Francisco, and Seattle) and nine states (Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont (effective July 1, 2017)) that have enacted similar laws for private employers.

Juvenile criminal record checks

Effective January 1, 2017, AB 1843 amends Section 432.7 of the Labor Code to prohibit California employers from inquiring about and considering information regarding “an arrest, detention, process, diversion, supervision, adjudication, or court disposition” that occurred while the candidate was subject to the process and jurisdiction of a juvenile court. Certain employment situations are exempted from these requirements, such as a prohibition by law from hiring an applicant who has been convicted of a crime.

Criminal background checks for transportation network companies

Effective January 1, 2017, under California’s AB 1289, a transportation network company (“TNC”) such as Uber, is required to perform criminal background checks on all drivers. The bill also prohibits a TNC from contracting with a driver who is registered on the DOJ’s national sex offender website or has been convicted of specified felonies, or misdemeanor assault or battery, domestic violence, or driving under the influence of drugs or alcohol within the past seven years.

Credit check restrictions

The District of Columbia is the latest jurisdiction to pass a law that prohibits private employers, with certain exceptions, from conducting credit checks on job applicants. The Fair Credit in Employment Amendment Act, which amends the Human Rights Act of 1977 to include credit information as a protected trait will take effect following approval by Mayor Bowser and other enactment actions. Similar to the laws already in effect in ten states for private employers (California – AB 22; Colorado – The Employment Opportunity Act; Connecticut – SB 361; Hawaii – HB 31 SD1; Illinois – HB 4658; Maryland – HB 87; Nevada – SB 127; Oregon – SB 1045; Vermont – Act No. 154 (S. 95); Washington – RCW 19.182 and RCW 19.182.020) and at least two cities (New York City – Stop Credit Discrimination in Employment Act and Philadelphia – Bill No. 160072), it restricts checking an applicant’s credit history except in circumstances where a credit screen is justified by the position’s responsibilities or is required by law.

Wage history inquiries

Pay equity initiatives include California’s AB 1676, which effective January 1, 2017, prohibits employers from using a candidate’s prior salary as the sole basis to justify a pay disparity. California, however, has decided not to follow the Massachusetts provisions (described below) of banning inquiries regarding a candidate’s wage history.

Massachusetts was the first jurisdiction to pass a law that prevents employers from asking job candidates about their salary history. The commonwealth’s Pay Equity Act goes into effect July 1, 2018, and in addition to equal pay requirements, it makes it illegal, among other things, to: (1) require that an employee refrain from inquiring about, discussing or disclosing information about his or her wages, or any other employee’s wages; (2) screen job applicants based on their wages; (3) request or require a candidate to disclose prior wages or salary history; or (4) seek the salary history from a current or former employer, unless he/she provides express written consent, and an offer of employment, including proposed compensation, has been extended.

Effective May 23, 2017, the city of Philadelphia with its Fair Practices Ordinance: Protections Against Unlawful Discrimination will make it unlawful for employers to inquire about a candidate’s wage history during the hiring process, unless a federal, state, or local law specifically authorizes the disclosure or verification of wage information.

Drug testing – marijuana

According to the National Conference of State Legislatures (NCLS), 31 states/jurisdictions (Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Guam, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington) have public medical marijuana and cannabis programs, while several states (Alaska – Ballot Measure No. 2; California – Proposition 64; Colorado – Amendment 64; District of Columbia – Initiative 71; Maine – Question 1; Massachusetts – Question 4; Nevada – Question 2; Oregon – Measure 91; and Washington Initiative 502) have passed laws allowing for the recreational use of marijuana by adults. Since the legal landscape for marijuana use is changing rapidly, employers should review and update their substance abuse policies, including drug-testing. Notably, marijuana remains a Schedule I drug under the federal Controlled Substances Act.

Work authorization verification

California’s SB 1001 is a revival of the 2015 AB 1065, which effective January 1, 2017, makes it unlawful for employers to:

Request additional or different documents than those required under federal law to verify that an individual is not an unauthorized immigrant
Refuse to accept documents provided by the applicant that reasonably appear to be genuine
Refuse to honor documents or work authorization based on specific status or term that accompanies the authorization to work
Attempt to reinvestigate or re-verify a candidate’s authorization to work using an unfair immigration-related practice.

Effective January 1, 2017, Tennessee’s SB 1965 requires that companies with 50 or more employees use the federal E-Verify program to confirm new employees’ work authorization.

As a reminder, starting January 22, 2017, all employers must use the new Form I-9, which is dated November 14, 2016 (the edition date is on the bottom of the form). Employers that fail to use the new form may be subject to civil penalties.

|Employment Decisions, FCRA, Legislation, Risk Management|

Congress proposes bill that protects regulated employers’ background checks

While the Equal Employment Opportunity Commission (the “EEOC”) is continuing its challenge of employers’ use of criminal history and credit report information in personnel decisions, and new “ban-the-box” laws are rapidly gaining momentum, on September 9, 2014, Congress proposed legislation that protects certain regulated employers from EEOC, state agency and private actions when they strive to comply with the screening laws that are particular to their industries. The Certainty in Enforcement Act of 2014 would amend Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2), and cover employers that include those engaged in “health care, childcare, in-home services, policing, security, education, finance, employee benefits, and fiduciary duties.”

|Employment Decisions, Legislation|

California’s A.B. 1710 enhances privacy protections for sensitive personal information

Effective January 1, 2015, A.B. 1710 amends California’s breach notification, security procedures, and Social Security number (SSN) laws, generally outlined as follows:

provides that existing personal information data security obligations apply to businesses that maintain personal information, in addition to those who own or license the information;
provides that if the person or business issuing the notification was the source of the breach, an offer to provide appropriate identity theft prevention and mitigation services, if any, be made at no cost to the affected person for not less than 12 months, along with all information necessary to take advantage of the offer to any person whose information was or may have been breached, if the breach exposed or may have exposed SSN and driver’s license numbers;
provides that a person or entity may not sell, advertise for sale, or offer to sell an individual’s SSN, except as permitted.

|Legislation, Security|

Proposed New Jersey bills restrict use of criminal records in employment decisions

In February 2013, identical bills aimed at reducing employment discrimination against individuals with criminal histories were introduced in the New Jersey Senate (S2586) and the New Jersey Assembly (A3837). Both bills propose the adoption of the Opportunity to Compete Act (the “Act”) which would impose multiple restrictions and requirements on employers in connection with seeking and using criminal background information about job applicants. If the Act is adopted, New Jersey will join a growing list of states, cities, and localities which have passed similar anti-discrimination legislation.

|Employment Decisions, Legislation|

Vermont is the latest state to restrict credit reports in employment decisions

Effective July 1, 2012, Vermont will be the eighth state to regulate the use of credit-related information for employment purposes. Although similar in many ways to laws already enacted in California, Connecticut, Hawaii, Illinois, Maryland, Oregon and Washington, Vermont’s requirements under Act No. 154 exceed those of other state laws as they prohibit even exempt employers from using an applicant or employee’s credit history as the “sole factor” in employment decisions. Additionally, Vermont exempt employers who take adverse action based in part on a credit history must return the report to the individual or destroy it altogether. Neither the Fair Credit Reporting Act (FCRA) nor any of the other similar state laws imposes such a requirement.

Generally, the Act prohibits employers from inquiring into an applicant’s or employee’s credit report or credit history, and further bans employers from discriminating against or making employment decisions (e.g. hire, fire, alter the compensation or any other term or employment condition) based on a credit report or credit history. Notably, credit history in this context includes credit information obtained from any third party that reflects or pertains to an applicant’s or employee’s “borrowing or repaying behavior, financial condition or ability to meet financial obligations,” even if that information is not contained in a “credit report.”

The trend in restricting credit report use for employment purposes will continue as several other states and the federal government are considering comparable legislation. Soon to follow most likely will be New Jersey. In May 31, 2012, the Senate approved S455 that would prohibit employers from seeking credit checks on employees or applicants under most circumstances. A parallel bill (A2840) was introduced by the Assembly on May 11, 2012, and a similar bill (A704) in December 2011.

|Employment Decisions, Legislation|

U.K. Bribery Act now slated to take effect July 1, 2011

After receiving widespread criticism for the lack of guidance and compliance clarification, the U.K. Bribery Act of 2010 (Bribery Act) originally scheduled for implementation in April 2011, is now set to take effect July 1, 2011. The act’s jurisdiction extends to commercial organizations incorporated or formed in the U.K. or “which carr

[y] on a business or a part of a business in the U.K. irrespective of the place of incorporation or formation.” Determination of such existence will be made by the U.K. courts and will require “a demonstrable business presence.” The official guide states that an organization will not be deemed to be carrying on a business in the U.K. merely by virtue of having its securities listed on the London Stock Exchange or by having a U.K. subsidiary.

Unlike the anti-bribery provisions of the U.S. Foreign Corrupt Practices Act (FCPA), which focus primarily on corruption involving non-U.S. government officials, the Bribery Act widens its scope to prohibit domestic and international bribery across both private and public sectors. And while the FCPA allows exceptions for facilitation payments (generally small payments to lower-level officials for “routine government actions,”) the Bribery Act does not. These payments were illegal under the previous legislation and the common law, but the difference under the Bribery Act is that non-U.K. organizations are broadly subjected to these restrictions for the first time.

The Bribery Act specifically criminalizes the offering, promising or giving a bribe (active bribery) and the requesting, agreeing to receive or accepting a bribe (passive bribery) to obtain or retain business or secure a financial or other advantage. It also contains a provision whereby an organization that fails to prevent bribery by anyone associated with the organization can be charged under the Bribery Act unless it can establish the defense of having implemented preventive “adequate procedures.” The official guide recommends the following six principles as foundation for developing “adequate procedures” to prevent bribery:

Proportionality – Actions should be proportionate to the risk, nature, size and complexity of the organization.
Top-level Commitment – Board of directors, owners, officers or equivalent top level- management should establish and promote a culture where bribery is never acceptable and be committed to preventing bribery, both within the organization and with anyone associated with the organization externally.
Risk Assessment – Various risk exposures, both internal and external, such as country of operation, business sector, types of transaction, new markets, and business partnerships should be evaluated and documented on an ongoing basis.
Due Diligence – Proportionate, risk-based approach to due diligence procedures assessing existing and proposed relationships should be taken to ensure trustworthy associations and mitigate identified bribery risks.
Communication – Appropriate channels of communication, awareness and training, both internal and external, on anti-bribery policies and procedures should be implemented and evaluated on a regular basis.
Monitoring and Review – Anti-bribery policies and procedures should be monitored on an ongoing basis and amended as quickly as possible when activities and risks change.

The penalties for violating the Bribery Act are severe, with individuals facing up to 10 years in prison and organizations facing unlimited fines. Violations also may result in damaging collateral consequences such as director disqualification, ineligibility for public contracts, and asset confiscation.

|Educational Series, International, Legislation|

More on credit reports for hiring decisions

According to September 2010 congressional testimony by the Society for Human Resource Management (SHRM), credit checks are a useful tool to “assess the skills, abilities, work habits and integrity of potential hires.” However, SHRM states that only 20 percent of employers conduct credit checks on all applicants. Fifty-seven percent of these employers perform the checks only after contingent offers, and 30 percent after job interviews; 65 percent allow job candidates to explain their credit results before the hiring decision is made, and 22 percent accept explanations after the hiring decision.

A bill in the U.S. House, called the Equal Employment for All Act, would amend the Fair Credit Reporting Act (FCRA) to ban the use of credit checks on prospective and current employees for employment purposes, with the following exceptions:

jobs that require national security or Federal Deposit Insurance Corp. clearance;
jobs in state or local government that require the use of credit reports;
supervisory, managerial, and executive positions in financial institutions.

The states of Illinois, Oregon, Hawaii, and Washington already have passed laws to prevent employers from using credit reports in employment decisions.

|Employment Decisions, Legislation|

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