Check out the latest compliance updates in the Compliance News Flash, which includes quick updates on:

  • The Connor v. First Student case in California and the constitutionality of ICRAA and CCRAA, applicable to employment and tenancy screening.
  • The Consumer Financial Protection Bureau, now the Bureau of Consumer Financial Protection and new leadership.
  • Massachusetts and Ban the Box enforcement actions.
  • An upcoming webinar by my colleagues Kevin Coy and Brad Kelley called The Cybersecurity Landscape: Regulatory Issues for CRAs on June 27, 2018.
  • The Hireright and GIS merger.

Happy Reading!

Recently I was interviewed by Brian Cardile, an editor at the Daily Journal, a legal newspaper in California, and host of a weekly podcast covering appellate law cases and issues.

The topic was Connor v. First Student, a case pending before the California Supreme Court which is vitally important to employers, landlords and background screening vendors in how background checks are conducted in California. Below is the introduction to the podcast:

Void for Overlap?

California appellate courts have split on the question of whether overlap between two consumer protection statutes renders one of them impermissibly vauge; the California Supreme Court will soon decide the matter.  We’ll hear a range of views from Hunter Pyle (Hunter Pyle Law), Catha Worthman (Feinberg Jackson Worthman & Wasow), Ted Mermin (Public Good Law Center; Berkeley Ctr. for Consumer Law and Economic Justice), and Montserrat Miller (Arnall Golden Gregory LLP).

Click here to listen to the podcast (June 15, 2018), which is on iTunes and found by searching for “Weekly Appellate Report.”

Check out this week’s Compliance News Flash with quick reads about:

  • Background screening operations in Canada and capturing consent.
  • Colorado’s new law safeguarding personal data.
  • Homeland Security and increased workplace investigations.
  • GDPR (need I say anything more for those working on this?).
  • Termination of Temporary Protected Status and work authorization.

Any questions please contact me at montserrat.miller@agg.com.

The Department of Justice (DOJ) settled an immigration-related discrimination claim against the University of California, San Diego related to the unlawful re-verification of work authorized individuals. According to the press release, DOJ’s “…investigation concluded that the [University’s Resource Management and Plan Vice Chancellor Area] unnecessarily required certain work-authorized immigrants to re-establish their work authorization when their documents expired, based on the citizenship status of those individuals when they were hired.  The antidiscrimination provision of the INA prohibits such requests for documents when based on an employee’s citizenship status or national origin.”

Takeaway from this case — employees who present an unexpired permanent resident card when they originally complete the employment eligibility verification form (the “Form I-9”) do not need to present follow up documentation when their card expires.  If an employee is a lawful permanent resident, as a general rule they are permanently work authorized and employers do not need to complete section 3 of the Form I-9 to re-verify their expiring permanent resident card.  In a similar situation, employers should not update or re-verify expiring driver’s licenses for Form I-9 purposes.

Background screening is a key step in hiring and the onboarding process, but there are a litany of federal and state laws in the US that establish certain obligations on employers as well as provide applicants with certain rights, including from discrimination.

Join Montserrat Miller, Partner, Arnall Golden Gregory LLP, and iCIMS Genera Counsel, Neal Dittersdorf, on Thursday, May 10th at 3:00 pm EST for Remaining Compliant During the Background Screening Process, the latest webinar in iCIMS quarterly Compliance Webinar Series. During this session, attendees will learn about:

  • The requirement to get applicants consent through the disclosure & authorization form
  • The adverse action process
  • How Fair Chance Hiring laws affect employment screening
  • Pay equity laws
  • GDPR compliance

Click here to register.

Today U.S. Citizenship and Immigration Services rolled out an updated website for E-Verify.

E-Verify is a web-based system that allows enrolled employers to confirm the eligibility of their employees to work in the United States. E-Verify employers verify the identity and employment eligibility of newly hired employees by electronically matching information provided by employees on the Form I-9, Employment Eligibility Verification, against records available to the Social Security Administration (SSA) and the Department of Homeland Security (DHS).

For a list of upcoming enhancements to E-Verify, click here.

Monitoring and Compliance (M&C) enforcement actions have increased since FY2014, when total compliance activity was 87,934 actions.  This number was the total number of Compliance Actions (e.g., emails, telephone calls, desk reviews and site visits) by M&C as well as Interagency Actions.  The same Compliance Activities for FY2017 stood at 130,006. The role of M&C is to protect E-Verify against system misuse through monitoring and compliance activities, such as identifying and resolving compliance issues, notifying employers of noncompliant behaviors, and offering compliance assistance in the form of emails, phone calls, desk reviews, and site visits.

Due to the federal government shutdown E-Verify — the electronic employment eligibility verification program that compliments the Form I-9 — is unavailable.  This means, among other things, that employers cannot access their E-Verify account during this time and until the federal government reopens. This will affect employers ability to enroll in E-Verify, create cases and address Tentative Non-Confirmations (TNCs).  The shutdown could end as early as today if Congress passes another stop-gap funding measure funding the government through February 8, 2018.

In the meantime, employers must still complete the Form I-9 for all new hires.  However, if you participate in E-Verify you will not be able to create a case and must do so when E-Verify is again available.  Read more about how to address the three business day window (which employers will not meet) for creating cases in E-Verify as a result of the federal government shutdown by clicking here.

California is on a roll with new employment-related laws effective January 1, 2018. The latest relates to salary history disclosures by job applicants. There is essentially a complete prohibition on an employer, either orally or in writing, personally or through an agent, seeking salary history information, including compensation and benefits, about an applicant for employment.  This applies to all employers (private/public) and the only exception is publically available salary history information. Background screeners and employers take note and check out section 432.3 of California’s Labor Code.

Another new law effective at the start of the year relates to immigration worksite enforcement and what employers cannot do and must do if they are the subject of a visit by immigration agents such as Immigration and Customs Enforcement (ICE) or the subject of an ICE investigation into their employment eligibility verification practices related to their Forms I-9.  Read more in this blog posting of mine.