November 23, 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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U.S. Immigration and Customs Enforcement (ICE) has once again extended its flexibility regarding the requirement by employers to physically inspect documents presented for section 2 of the Form I-9, this time extending the flexibility until December 31, 2020. Originally announced on March 19, 2020, and previously extended until November 19, 2020, this policy allows employers that are operating 100% remotely due to COVID-19, to defer the physical presence requirements associated with section 2 of the Form I-9. Notably, 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, although the in-person requirement is currently waived if operating entirely remotely due to COVID-19, the Form I-9 must still be completed within three business days of hire. Click here and here to read more.
- The Department of Justice (DOJ) Immigration and Employee Rights Section has announced three settlements resolving allegations of discrimination by employers against work-authorized non-U.S. citizen employees when completing the Form I-9 as part of the employment eligibility verification process. The DOJ alleged that the employers discriminated against employees by asking them to provide specific and unnecessary documentation showing their legal right to work, after the employees already presented valid, sufficient documents. Two of the settlements involved discrimination against multiple employees with one settlement resulting in a $627,000 in civil penalty, and the other, $90,000. To read more about each settlement, click here, here, and here. As a note, for purposes of the Form I-9, employees may present any of the documents listed on the Lists of Acceptable Documents. Employers may not ask for additional or different documents if the employee complies with the documentary requirements. For example, if an employee provides a driver’s license and unrestricted social security card—and checks the box that they are a lawful permanent resident—an employer cannot also ask for that individual to present their permanent resident card (aka “green card”).
- A new Maryland regulation has taken effect implementing Maryland HB 848, which was passed in 2018, establishing a surety bond process for consumer reporting agencies (CRAs) in Maryland. The regulation includes requirements and exemptions for surety bonding, and a requirement for registered CRAs to transition their registrations to the Nationwide Multistate Licensing System (NMLS) by December 31, 2020. A registrant who already has an NMLS account need not create a new account and will be able to complete the transition using its existing account; but, it will still be required to provide the information or documents specifically required for this registration. Click here to read the announcement of the new regulation from the Maryland Commissioner of Financial Regulation.
- The European Commission has issued new Standard Contractual Clauses (SCCs) and the European Data Protection Board has issued step-by-step recommendations regarding the supplementary measures recommended in Schrems II. The new SCCs are subject to public comment until December 10, 2020 and once they are finalized, organizations will have one year to implement them. They include stricter onward transfer restrictions, broader third party beneficiary rights for data subjects, and broader transparency requirements. In the spirit of the Schrems II ruling, the new SCCs contain specific obligations to assess whether the SCCs can provide an adequate level of data protection in light of the legal regime of the receiving country. As for the step-by-step recommendations, in short, the guidance is as follows: (1) map all data transfers out of the European Union (EU); (2) understand the basis for each transfer (e.g., SCCs, etc.); (3) determine if the recipient’s country has laws that would negatively impact safeguard measures; (4) adopt additional security measures that will ensure the data is afforded the same level of protection in the receiving country as it is afforded in the EU; (5) take any formal procedural steps the adoption of your supplementary measure may require; and (6) regularly re-evaluate the protection afforded to the data that is exported. Click here to read the new SCCs. Click here to read the step-by-step guidance.
- In October, the U.S. Department of Labor issued an Interim Final Rule (IFR) that was effective immediately, revising the methodology for computing the prevailing wage for Labor Condition Applications (LCAs) used for H-1B petitions as well as Prevailing Wage Determinations (PWDs) used for labor certifications. The change resulted in artificially inflating the wages that must be paid to temporary and permanent workers under the H-1B and labor certification programs. The IFR—Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States—was issued October 8, 2020. Click here to read the IFR in the Federal Register. The IFR is the subject of federal litigation filed by multiple parties against the government alleging that the process in which the IFR was implemented violates the Administrative Procedures Act because it was issued without “notice and comment,” and that the wage increases are artificially high and the methodology for computation of these new wages is faulty.
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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.
