This week’s edition of the Compliance News Flash by Arnall Golden Gregory includes blurbs about the:

  • National Association of Professional Background Screeners (NAPBS) conference in Baltimore;
  • Temporary Protected Status program and an injunction against the government;
  • EU-U.S. Privacy Shield program and enforcement actions against organizations related to their certification;
  • Updated “A Summary of Your Rights under the Fair Credit Reporting Act” model form; and
  • Italy and the General Data Protection Regulation (GDPR).

Click here to read.

Enjoy and have a great weekend!

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.

This blog is created with content straight from the National Association of Professional Background Screeners (NAPBS) and a Member Advisory which all background screening companies should read.  The Member Advisory was posted last week and below are the key excerpts.

“First, we have noticed an increased number of full file disclosure requests being sent to and received by consumer reporting agencies. Many of these requests come directly from legal counsel. This is a good time to review your procedure in responding to file disclosure requests. Further, if you receive a request for a full file disclosure, particularly if it comes directly from the consumer’s legal counsel, exercise caution and consult with legal counsel prior to responding.

Second, NAPBS leadership met with a few members of the Federal Trade Commission last month in follow-up to our earlier meeting at the conclusion of the 2015 NAPBS Advocacy Day….[the FTC shared] with NAPBS that their primary area of focus currently is on “matching criteria.” Based on this feedback and confirmed area of focus for the FTC, NAPBS members would be well advised to review their policies/procedures related to matching a record’s identifiers to the subject of the report and to consult with legal counsel on same.

Finally, last week NAPBS became aware that a person joined the Association earlier this year and attended our annual conference in Austin, Texas, in an effort to obtain negative information pertaining to the screening profession. This new member proceeded to publish notes from the conference and slide decks on his website….”

On the last point, the website is The Expunged Record.  Click here to read the notes about the NAPBS conference.

If I don’t blog again before then, Merry Christmas, Happy New Year, Happy Holidays!

I recognize this is a few days late, but the content is still timely.  Last month I attended the NAPBS Mid-Year Conference in Washington, DC both as an attendee and speaker. One session of particular interest to me was Maneesha Mittal’s presentation.  Maneesha is the Associate Director of the Division of Privacy and Identity Protection at the Federal Trade Commission (FTC).  Her team is the team that would bring an enforcement action against a background screening company for non-compliance under the Fair Credit Reporting Act (FCRA).

Below are the take-away points I found most helpful for purposes of my day to day practice advising background screening companies on their compliance with the FCRA:

  • Reasonable security of data – Maneesha stressed the importance of “knowing your customer” when transacting with them and provided examples of companies who failed to maintain appropriate data security through reasonable procedures, and failed to ensure a permissible purpose to the reports (e.g., ACRAnet, Inc., SettlementOne Credit Corporation, Statewide Credit Services).
  • The FCRA applies equally to social media when used for background screening purposes and she gave as examples the FTC letter to Social Intelligence Corporation and the ongoing Spokeo v. Robins case.  For the Spokeo case, note that the U.S. Supreme Court granted cert. and will take up this important case next year.  The Spokeo case goes to the issue of whether a plaintiff has to show actual injury in fact in order to have Article III standing, or whether a mere violation of the statute is sufficient to bring suit.  Let’s hope the former and not the latter.
  • Companies cannot disclaim liability under the FCRA and then proceed to sell information to employers which could be used for background screening purposes.  As an example she cited the settlement against Filiquarian Publishing LLC, Choice Level LLC and their CEO for alleged failure to ensure that the information they sold was accurate and could only be used for a permissible purposes.   In this matter, the maker of the mobile app claimed that users could use the app to conduct criminal background searches on individuals but used disclaimers stating that they were not FCRA complaint and that the products should not be used for employment screening purposes.
  • Accuracy of the reports – reports with multiple entries listing the same offense are not acceptable. Basically, a data dump is not acceptable as it does not comply with the FCRA requirement to maintain maximum possible accuracy.  As an example she cited the HireRight Solutions enforcement action and settlement.
  • Consumer disclosures — have adequate staff to respond to consumer requests for their reports.
  • Use of section 603(y) of the FCRA as a defense to litigation is on the rise.  It is the FTC ‘s opinion that this section of the FCRA, which relates to investigations of suspected employee misconduct, is only intended to cover current employees and not job applicants.  Stay tuned for potential guidance from the FTC on this point.
  • U.S. based background screening companies doing background checks on international employees – the FCRA would apply.
  • Regarding the amicus brief in Moran v. The Screening Pros tied to section 605 of the FCRA and the obsolescence rule for dismissals, this is an FTC “opinion” and not just a staff view as the Commission approved the FTC’s participation in the amicus brief.

For those of you tracking anything and everything about the EEOC’s criminal records guidance, this is for you.   

The U.S. Commission on Civil Rights (USCCR) has posted the transcript of the December 2012 briefing on assessing the impact of criminal background checks and the EEOC’s guidance on the consideration of arrest and conviction records in employment screening.  I provided testimony on behalf of the National Association of Professional Background Screeners (NAPBS), who was invited to testify at the briefing along with EmployeeScreenIQ, National Small Business Association, SHRM, National Retail Federation and the National Association for Home Care and Hospice.  The list of  invited speakers is longer, these were just on one panel.

To read the transcript click here

At the upcoming August 16th meeting of the USCCR, Commissioners are expected to vote on a report to the briefing. If approved, Commissioners will write individual statements to the report.   It is expected the report will be approved, although it is not expected that the USCCR will issue recommendations with the report regarding the use of criminal background checks and employment screening.