Compliance News Flash - July 2020 #1

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Arnall Golden Gregory LLP is pleased to provide you with the Compliance News Flash, which includes current news briefs relevant to background screening, immigration and data privacy, for the benefit and interest of our clients as well as employers and consumer reporting agencies generally.

  • The Court of Justice of the European Union (CJEU) has issued its Schrems II decision which invalidates the EU-U.S. Privacy Shield, while upholding Standard Contractual Clauses subject to enhanced scrutiny. The CJEU concludes that (i) the EU-U.S. Privacy Shield program does not provide adequate safeguards and is no longer a valid legal mechanism for the transfer of personal data from the European Union (EU) to the United States; and (ii) Standard Contractual Clauses (SCCs) remain a valid mechanism for such transfers, although a case-by-case evaluation of their sufficiency may be required by local data protection authorities as well as controllers and processors. The Department of Commerce has indicated that it will continue to administer the Privacy Shield program, and all current Privacy Shield participants must continue to meet their obligations under the program. Click here to read the CJEU’s decision, and here to read AGG’s Client Alert on the topic.
  • The Trump administration walked back its proposal to bar nonimmigrant F-1 and M-1 students taking an entirely online course load during the upcoming fall 2020 semester from remaining in the United States. The reversal came after Harvard University and the Massachusetts Institute of Technology (MIT) filed a lawsuit opposing the policy directive. Normally, F-1 and M-1 students are restricted from taking more than one online course per semester, but the Department of Homeland Security (DHS) previously allowed flexibility in this regard during the 2020 spring and summer semesters, permitting F-1 and M-1 international students to take multiple online courses dependent on their school’s response to COVID-19. That flexibility should now extend into the upcoming fall semester. Click here to read more and here to read about the (now rescinded) policy directive.
  • The Supreme Court issued its opinion in Seila Law LLC v. Consumer Financial Protection Bureau resolving the question of whether the leadership structure of the Consumer Financial Protection Bureau (CFPB) is constitutional. In the 5-4 decision, the majority opinion, written by Chief Justice John Roberts, ruled that the CFPB leadership structure violates the Constitution’s separation of powers. Nonetheless, seven justices agreed this does not render the entire agency unconstitutional. The Court held that the provision in the Dodd-Frank Act providing that the CFPB director may only be removed by the President “for cause,” can be struck from the statute, and the agency may continue with a director that is removable by the President “at will,” which means, the CFPB director may be removed for any reason. Click here to read more.
  • The Eleventh Circuit opined on the “willfully violated” standard of the Fair Credit Reporting Act (FCRA) in its decision in Shaun J. Younger v. Experian Information Solutions, Inc. In the underlying case, the plaintiff claimed that Experian “negligently and willfully violated” the FCRA when it failed to reinvestigate a debt on the plaintiff’s credit report which, the plaintiff claimed, had been dismissed. The plaintiff had sent a letter to Experian requesting reinvestigation but Experian’s mailroom identified the letter as “suspicious” pursuant to its “suspicious mail policy” and the letter was never delivered to its intended recipient. The Eleventh Circuit concluded that Experian did not “willfully” violate the FCRA because the plaintiff did not establish that “Experian ran an unjustifiably high risk of violating its duties under the FCRA” by having a “suspicious mail policy.” Click here to read more.
  • As an update on our previous News Flash, United States Citizenship and Immigration Services (USCIS) is moving forward with its plan to furlough approximately 13,500 employees. According to the notices USCIS sent to employees earlier this month, the furloughs will begin on August 3rd and last at least one month but less than 90 days. The fee-funded agency has seen its revenue plummet with the decrease in applications and petitions brought about by the coronavirus pandemic as well as the Trump administration’s on-going restrictions on immigration. In order to avoid furloughs, USCIS is asking Congress for $1.2 billion in emergency funding and permission to increase fees 10% to reimburse the appropriation. Click here and here to read more.

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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