Key Highlights From Our April Privacy Digest


Key Highlights From Our April Privacy Digest

April was a busy month in the background check industry, as new laws and regulations are rapidly changing the landscape of the work we do here at ClearStar. This month, we saw the FTC settle against two companies in violation of U.S.-EU Safe Harbor privacy frameworks, as both companies were found in breach of compliance as their certifications had expired years ago. The National Association of Professional Background Screeners (NAPBS) recently held a webinar on U.S.-EU Safe Harbor compliance, and will soon be hosting a similar webinar for all ClearStar clients.

Additionally, Virginia Governor Terry McAuliffe signed an executive order into law to prevent state employment applications from inquiring into candidates’ criminal history. This is considered a win for “Ban the Box” advocates who believe such inquiries result in unfair discrimination. “Ban the Box” talks were also underway at the White House, where activists encouraged President Barack Obama to do more to assist former prisoners who are unable to land jobs due to their criminal backgrounds.

And, in New York City, the City Council signed a measure to make it unlawful for employers to conduct credit checks as part of the employment screening process. The measure is awaiting action from NYC Mayor Bill de Blasio.

FTC Agrees to Settlement in U.S.-EU Safe Harbor Privacy Framework Case
On April 7, 2015, the FTC announced a settlement against two companies that falsely claimed compliance with the U.S.-EU Safe Harbor privacy framework when, in fact, the certifications had expired. The case sends an important message that companies must not deceive consumers as to whether businesses hold these certifications.

A hot button issue in the background check industry, news of this settlement comes alongside the NAPBS’ recent webinar on Safe Harbor requirements and compliance. Kevin Coy, Partner at the law firm Arnall Golden Gregory LLP, and Krysten Jenci of the U.S. Department of Commerce presented the webinar as an overview of mandates for compliance and to assess the implication of compliance breaches. Coy will provide a webinar on Safe Harbor requirements and compliance to ClearStar clients on June 9, 2015.

Ban the Box: Virginia Executive Order Signed Into Law
“Ban the Box” remains a compelling initiative as more states, localities, and municipalities enact legislation to prevent potential employers from including a box for criminal convictions on job applications. People in support of this initiative say that the disclosure of a criminal conviction before a person has a chance to interview for a position unfairly subjects that person to discrimination in the application process. Many times, such convictions are decades old, yet potential employees are legally forced to disclose them on employment applications.

On April 3rd, Virginia Governor Terry McAuliffe (D) signed an executive order effectively removing questions regarding convictions and criminal history from state employment applications. In addition to banning the box, the order requires Virginia’s Department of Human Resources Management (DHRM) to inform executive branch hiring authorities that state employment decisions cannot be based on criminal history, except in situations where such history is job-related and consistent with business necessity. Additionally, the employer must still comply with the law where state or federal law prohibits hiring an individual with certain convictions for a particular position.

Finally, the DHRM must provide guidance to ensure a criminal history background check is only conducted after a candidate has signed a waiver authorizing release, is otherwise eligible for the position, and is being considered for a specific position.

The order applies to all agencies, boards and commissions within the executive branch, and the measure encourages similar practices among private employers and state government contractors.

Federal Ban the Box Legislation: Obama Urged to Help Create Opportunities for Ex-Prisoners
In addition to the recent Virginia legislation, “Ban the Box” initiatives are underway at the federal level as well.

In late March, criminal justice reform advocates met with top White House advisers to help former prisoners in their job search efforts. They urged President Barack Obama to issue an executive order that would ban government and federal contractors from asking most prospective employees questions about criminal records.

According to the National Employment Law Project, up to 70 million Americans have criminal backgrounds that make it harder for them to find work. These criminal background inquiries disproportionately impact people of color, who make up 60 percent of the prison population. Advocates also claim that background checks run counter to the criminal justice system’s goal of rehabilitation, effectively impeding those who have otherwise shown progress in criminal rehabilitation efforts.

As of today, sixteen states and the District of Columbia have enacted “Ban the Box” laws, with recent legislation in Georgia and Virginia slated to take effect soon.

This is an important topic and ClearStar, in partnership with the law firm Arnall Golden Gregory, presented a webinar on the subject matter on April 29th. The webinar is available here. For a copy of the presentation, please contact Craig Caddell at [email protected].

Credit Reports Now Unlawful for Employment Screening Purposes in NYC
The New York City Council passed Int. 261-A on April 16, 2015, which would make it “an unlawful discriminatory practice for an employer to use an individual’s consumer credit history in making employment decisions.” In the past, Mayor Bill de Blasio has voiced his support for such legislation but has signaled he might consider exceptions. The measure awaits his approval.

Some states have limitations on the use of credit for employment screening purposes, including California, Connecticut, Hawaii, Illinois, Maryland, Oregon and Vermont. The New York City initiative is the latest measure adopted on the subject.

For more information about changes in the background check landscape and policy updates that could affect your business, review our full April digest. We are committed to keeping you abreast of the industry news. And, if you’d like to stay informed with day-to-day updates that may impact you, follow us on Twitter and like us on Facebook and LinkedIn.


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