Please enjoy this week’s Compliance News Flash with blurbs about the President’s travel ban, use of social media information by the government, employment-related criminal background checks and litigation, potential new salary history restrictions, and insurance coverage.
Are you an owner/operator, HR professional, compliance director or manager, or in-house counsel and interested in learning more about the Employment Eligibility Verification form (the “Form I-9”)? Here are some educational opportunities:
- If you are local to Atlanta, Georgia I will be joining my colleagues to talk about “Hot Topics in Immigration under the Trump Administration” at our offices on May 17, 2017 from 4 – 6 pm. The event is sponsored by the German American Chambers of Commerce. Click here to learn more and register for this presentation.
- In June I will be presenting a webinar for the Georgia Restaurant Association entitled, “Workplace Investigations by the Dept. of Homeland Security – Is Your Restaurant Ready?” The webinar is from 2 – 3 pm on June 5, 2017. Click here to register.
I recently wrote an article for Construction Business Owner entitled “The Record-Keeping Mistake You Could be Making” that addresses the Form I-9 and provides practical tips and best practices with respect to the form. To read the article click here.
Finally, U.S. Citizenship and Immigration Services (USCIS) will be issuing a new Form I-9 this summer, which will take effect in September 2017. One reason being that the International Entrepreneur Rule requires changes to the form to allow parole status to serve as a basis for employment authorization. Read more in Friday’s Compliance News Flash by clicking here.
Any questions please email me at firstname.lastname@example.org.
New York City Mayor Bill de Blasio signed legislation prohibiting employers from inquiring about a prospective employee’s salary history during the hiring process. New York City joins Massachusetts and Philadelphia in passing legislation seeking to address the gender pay gap and ensure pay equity in the workplace.
Key details of the new law:
- It will take effect October 31, 2017 and applies to private employers, among others.
- It amends the Administrative Code (section 8-107) of the City of New York in relation to prohibiting employers from inquiring about or relying on a prospective employee’s salary history. Therefore, as an employer, if inquiring into salary history is a part of your background screening process, you will need to re-evaluate this practice in order to ensure compliance by October 31, 2017.
- Once effective, it will be an unlawful discriminatory practice for an employer, employment agency, or employee or agent to (i) inquire about the salary history of a job applicant; or (ii) rely on the salary history of a job applicant in determining salary, benefits or other compensation during the hiring practice, and including the negotiation of a contract.
- Exceptions — an employer can still engage in a discussion with the job applicant about their expectations with respect to salary, benefits and other compensation; but, they cannot ask about salary history. Another exception to the general restriction on inquiring about salary history is where the job applicant proactively discloses salary history, at which point an employer may consider salary history and may even verify the job applicant’s salary history.
- The general prohibition on inquiring about salary history does not apply to situations where federal, state or local law requires such disclosure or verification of salary history for employment purposes; (ii) internal transfers or promotions; and (iii) public employee positions governed by a collective bargaining agreement.
Background screening companies note the term “agent” and the potential for a claim of engaging in an unlawful discriminatory practice. Bear in mind that New York City’s Stop Credit Discrimination in Employment Act (SCDEA) makes it unlawful to “aid or abet” any form of prohibited discrimination, including credit discrimination and this applies to consumer reporting agencies (i.e., background screeners). It is likely that the New York City Commission on Human Rights will issues regulations and guidance to clarify the intent of the law and we will see if they address this issue and other aspects of the law.
Please enjoy this week’s Compliance News Flash with blurbs about Massachusetts’s CORI regulations, the Form I-9 and E-Verify, the redesigned Green Cards and Work Permits and what it means to employers, and the ongoing discrimination litigation by EEOC against Dollar General.
Click here to read the News Flash.
Read more about this in an article I wrote, published by FSR Magazine on April 18, 2017, which is intended to help leaders within the restaurant industry understand the employee onboarding process to avoid claims of unlawful discriminatory practices under the Immigration and Nationality Act. The insights provided in the article are equally applicable to other industries and types of employers.
Click here to read the article.
In February I started writing a weekly compliance news flash which is published on Friday. In April it dawns on me that I should provide this information to all my wonderful readers (thank you by the way). Clearly I was on the slow train on this one. Regardless, here you go–this week’s compliance news flash which succinctly covers important issues related to employment background checks and immigration compliance (i.e., Form I-9, E-Verify and Homeland Security workplace investigations). Prior versions of the Compliance News Flash can be found by clicking here and here and here. If you would like the news flash to appear in your inbox please send me an email and I will add you to my list — email@example.com.
Perk for members of NAPBS. A colleague of mine is doing a webinar for members of NAPBS on the Foreign Corrupt Practices Act (FCPA). Below is a summary of the webinar Mike Burke will be leading tomorrow (March 29) at 3 pm EST.
The Foreign Corrupt Practices Act (FCPA) impacts every U.S. business that has operations in other countries. Given the nature of the background screening industry, and the contacts between industry and government officials and regulators, U.S. background screeners need to pay particular attention to the FCPA’s compliance requirements. In this program, we will discuss the FCPA’s compliance requirements, the applicability to the background screening industry, and share some best practice tips for compliance.
If you are a member of NAPBS, click here to register.
Today’s fun fact – as an employer you cannot ask employees to provide a specific document or documents when completing section 2 of the Form I-9 (the Employment Eligibility Verification form). Remember, all employers must complete a Form I-9 for new hires within three business days of hire. Section 2 of the Form I-9 is where the employee must present the employer with documentary proof of identity and work authorization by selecting a document, or documents, from the Lists of Acceptable documents. Employers cannot tell employees what document(s) to present. As an employer, your responsibility is to show the list to employees and have them select which document(s) they will present for section 2 completion.
Why is this a problem? Because, when an employer requires certain documents from some individuals but not others this can lead to a claim of discrimination under the Immigration and Nationality Act (INA). Discrimination based on national origin or citizenship. These types of claims are handled by the Department of Justice’s Immigrant and Employee Rights Section (IER), formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices.
To prove my point, the Department of Justice recently settled an immigration-related discrimination claim against a pizza restaurant franchisee with 31 locations in Florida for $140,000. Why? Well, the allegation was that the employer routinely requested that lawful permanent residents produce a specific document to prove their work authorization—their permanent resident card—while not asking the same of U.S. citizens. This is not acceptable.
And, as if paying a civil penalty of $140,000 isn’t enough, under the terms of the settlement, the pizzerias must “post notices informing workers about their rights under the INA’s antidiscrimination provision, train their human resources personnel, and be subject to departmental monitoring and reporting requirements.” In addition to the civil penalties, factor in attorney’s fees for legal representation.
A quick refresher on completing section 2 of the Form I-9 for someone who checks in section 1 of the Form I-9 that they are a lawful permanent resident (aka “green card holder”). That employee may then, for purposes of completing section 2, present either a permanent resident card (a List A document) or a driver’s license and unrestricted Social Security Card (List B and List C documents). Just because they say they are a lawful permanent resident does not mean they must provide their permanent resident card. An employer cannot tell that individual what specific document(s) to present. The Lists of Acceptable Documents are part of the Form I-9 which can be found on U.S. Citizenship and Immigration Services website.
We are almost to a point where all 50 states and the District of Columbia will have some form of data breach notification law on their books to protect residents’ personally identifying information (PII) in the event of a data breach. The three holdout states are Alabama, New Mexico and South Dakota. But that’s about to change in New Mexico. The state legislature recently passed the Data Breach Notification Act (H.B. 15) and the legislation is awaiting Governor Susana Martinez’s signature.
Some highlights of the legislation:
- A “security breach” is defined as the “unauthorized acquisition of unencrypted computerized data, or of encrypted computerized data and the confidential process or key used to decrypt the encrypted computerized data, that compromises the security, confidentiality or integrity of personal identifying information maintained by a person.”
- It requires the proper disposal of PII when records containing such are “no longer reasonably needed for business purposes.”
- It requires that any person that owns or maintains PII of New Mexico residents must “implement and maintain reasonable security procedures and practices appropriate to the nature of the information to protect the personal identifying information from unauthorized access, destruction, use, modification or disclosure.”
- In the event of a security breach, notification must be provided within 45 days. However, New Mexico will be a “risk of harm” state, meaning that notice will not be required if the incident does not “give rise to a significant risk of identity theft or fraud.”
- The notification letter must include specific content, including (but not limited to) the types of PII compromised, date of the breach, a general description of the breach, contact information for the three major credit bureaus, and “advice that directs the recipient to review personal account statements and credit reports, as applicable, to detect errors resulting from the security breach.”
- Notice is required to be provided to the state attorney general and the three major credit bureaus if the breach affects more than 1,000 New Mexico residents.
Please join me next week for a discussion about what employers need to be aware of regarding pre-employment background checks to ensure you have compliant background screening policies and procedures in place. Some of the topics I will discuss include the Fair Credit Reporting Act, state law regarding restrictions on the use of credit information for employment screening purposes, the EEOC’s guidance on the use of criminal history records, and Fair Chance Hiring laws (aka Ban the Box ordinances).
Details: The free webinar is Wednesday, March 15, 2017 from 2:00 PM – 3:00 PM EDT.