Compliance News Flash

by Arnall Golden Gregory LLP

Arnall Golden Gregory LLP is pleased to provide you with the Compliance News Flash, brought to you each Friday. This weekly update is your source for timely background screening and immigration-related news that is important to your organization.

  1. U.S. Citizenship and Immigration Services has been announcing over recent weeks the decision to terminate Temporary Protected Status (TPS) designation for certain countries. Those countries include Haiti, Nicaragua and Honduras. This is relevant to employers because often nationals from these countries are working in the United States with lawful work authorization documents in the form of a work permit. The administration’s decision to terminate TPS means that benefit—employment authorization—will end too. For Haiti, the TPS designation will end July of 2019. For Nicaragua the TPS designation will end January of 2019. Honduras’ designation is under review.
  2. Recently the U.S. Supreme Court denied cert in a challenge to the Ninth Circuit’s decision Sarmad Syed v. M-I, LLC, No. 14-17186 (9th Cir., Jan. 20, 2017) by M-I. The case centers around the employer provided disclosure and authorization as required by the Fair Credit Reporting Act (FCRA), the “stand-alone disclosure” requirement, and whether the inclusion of a liability waiver is a willful violation of the statute. As it stands now—at least in the Ninth Circuit—an employer’s inclusion of a liability waiver in the disclosure and authorization notice to the job applicant is considered a willful violation. However, the Supreme Court’s decision to refuse to hear a challenge to Syed goes to the issue of what qualifies as Article III standing under their decision in Spokeo Inc. v. Robins, 136 S. Ct. 1540 (2016). So for now, we will continue to suffer under inconsistent lower court decisions on how to evaluate standing in order to bring a claim under the FCRA.
  3. Spokane, Washington is on the verge of enacting a Fair Chance Hiring ordinance which includes a Ban the Box requirement applicable to private employers. On November 27, 2017 the Spokane City Council approved the ordinance restricting private sector employers ability to request and consider conviction records for employment purposes, including asking the question about criminal history on job applications. Requests and consideration of criminal history would be permitted only after a conditional offer of employment. If approved by the Mayor, the ordinance would add a new chapter 09.02 to the Spokane Municipal Code entitled Fair Chance Hiring. It will also mean that Spokane will join Seattle as cities in Washington with Fair Chance Hiring ordinances applicable to private employers.
  4. The Article 29 Data Protection Working Party (“Working Party”) recently issued a report on the EU-U.S. Privacy Shield framework after the first joint review of the program (EU-U.S. Privacy Shield—First annual Joint Review, Adopted on Nov. 28, 2017). The report calls on the Department of Commerce and Federal Trade Commission to issue “guidance and clear information” on implementation of the Privacy Shield principles, on onward transfers, and on the rights and available recourse and remedies for data subjects. The report also speaks to the treatment of HR data and takes an expansive view on what qualifies as such when transferred to the United States for processing purposes.
  5. Employers using E-Verify take note that on March 1, 2018 U.S. Citizenship and Immigration Services must dispose of E-Verify records that are over ten years old - those dated on or before December 31, 2007. E-Verify employers have until February 28, 2018 to download case information from the “Historic Records Report” if they want to retain information about each E-Verify case that will be purged. Click here for instructions for downloading historic records reports in E-Verify.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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