September 4, 2020
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.
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The California legislature passed Assembly Bill 1281 (AB 1281) extending until January 1, 2022 the partial exemption for employment data under the California Consumer Privacy Act (CCPA). The partial exemption applies to information collected by a business about job applicants and employees, but it does not exempt a business from the responsibility to inform employees and job applicants of the personal information it collects about them and for what purposes it is used. AB 1281 now awaits Governor Newsom’s signature, and will only take effect if the California Privacy Rights Act (CPRA), a ballot initiative to amend the CCPA, is not approved in the election on November 3, 2020. In other words, if the CPRA is not approved, the exemption will expire on January 1, 2022. If the CPRA is approved, the exemption will expire on January 1, 2023. Click here to read the bill.
- U.S. Citizenship and Immigration Services (USCIS) averted the administrative furlough of more than 13,000 employees that was scheduled to begin August 30th. According to USCIS, spending cuts and a steady increase in daily revenue has allowed the agency to avoid furloughs for the time being. USCIS expects to be able to maintain operations through the end of fiscal year 2020, though it notes that spending cuts will impact agency operations. USCIS is still looking for Congress to act on a long-term solution that will provide it with additional funding to sustain the agency throughout fiscal year 2021 and beyond. Click here to read more.
- U.S. Immigration and Customs Enforcement (ICE) has once again extended its flexibility regarding the physical presence requirement for section 2 of the Form I-9. Employers operating 100% remotely due to COVID-19 are not required to review an employee’s identity and employment authorization documents in the employee’s physical presence (as is required to complete section 2 of the Form I-9). Previously extended through August 19, 2020, the agency’s enforcement flexibility has been extended for an additional 30 days such that it will now expire on September 19, 2020. Once normal operations resume, employees who were on-boarded during this time must report to their employer within three business days for in-person verification of the document(s) presented for section 2 of the Form I-9. Also, it is important for employers to understand that although the in-person requirement is currently waived if operating remotely due to COVID-19 restrictions, the Form I-9 must still be completed within three business days of hire and this waiver of the physical presence requirement is limited in duration. Click here to read about the extension and here to read the original guidance.
- The U.S. District Court for the Southern District of New York has certified a proposed class action settlement to resolve claims that Madison Square Garden violated the Fair Credit Reporting Act (FCRA) by denying employment based on criminal background checks. The lawsuit alleged that Madison Square Garden rejected job applicants based on information contained in their background check reports without first providing them with a copy of the report, the statement of rights under the FCRA, or a copy of Article 23-A of the New York Correction Law. The lawsuit alleged this was a violation of the FCRA as well as New York state law, which require certain disclosures before any adverse action is taken against job applicants. Under the terms of the settlement, Madison Square Garden will pay approximately $1.3 million and agrees to make substantial changes to its hiring policies. Click here to read more.
- The Eastern District of Pennsylvania recently issued a decision that should prompt consumer reporting agencies (CRAs) to initiate reinvestigations even when disputed information appears to be accurate. The case arose after a home security company pulled a credit report on a consumer from Trans Union without his permission, and subsequently, despite the consumer’s demands, Trans Union declined to remove the credit inquiry from the consumer’s credit report. The court ultimately found that if a CRA fails to initiate a reinvestigation in response to a consumer dispute of accuracy of information in its file, then the CRA can be found liable under FCRA § 611, even if the disputed information was accurate. In light of this decision, CRAs should initiate reinvestigations whenever a consumer disputes the accuracy of information in the consumer’s file, even if the CRA knows the information to be accurate. Click here to read AGG Partner and co-chair of AGG’s background screening industry team, Henry Chalmers’ take on the case.
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Montserrat C. Miller |
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Erin E. Doyle |
The information presented provides a general summary and/or recent legal and regulatory developments. It is not intended to be, and should not be relied upon as legal advice.