AGG Compliance News Flash – September 13, 2019

Name change! The National Association of Professional Background Screeners (NAPBS) is now the Professional Background Screening Association (PBSA). The change in trade association name was announced at the annual conference in San Antonio, Texas. The change is intended to reflect the global nature and reach of the association. Click here.

Still no news on a new version of the Form I-9. Last month U.S. Citizenship & Immigration Service (USCIS) informed employers to continue using the Form I-9 currently available on I-9 Central notwithstanding the August 31, 2019 expiration date listed on the form. This version of the Form I-9 has been in use since July 2017. According to USCIS, a new version of the Form I-9 will be published and any updates will be posted on I-9 Central as they become available. No major changes are expected to the form itself, although it is likely the instructions to the Form I-9 may contain changes. Click here to follow the most recent updates from USCIS.

The Federal Trade Commission (FTC) approved a final consent order against another company (this time a background screening company) for falsely claiming compliance with the EU-U.S. and Swiss-U.S. Privacy Shield frameworks (“Privacy Shield”). The FTC alleged that although the screening company initiated Privacy Shield applications with the U.S. Department of Commerce in September 2017, the company did not complete all the steps necessary to be certified as compliant with Privacy Shield while proceeding to represent themselves as compliant on their website. The settlement requires the company to meet reporting and compliance requirements with a potential civil penalty of up to $42,530 per future violation. Click here to read more. This type of case is low hanging fruit for the FTC and not the first of its type. Click here for more examples.

The California Consumer Privacy Act (CCPA) amendment process is coming to an end this month. The California Legislature is scheduled to adjourn Friday the 13th, and sometime thereafter, the California attorney general is expected to issue draft rules that will clarify requirements under the CCPA. One notable change for background screening companies is that the current exception under the Fair Credit Reporting Act (FCRA) may be expanded to more broadly apply to “any activity involving the collection, maintenance, disclosure, sale, communication, or use of any personal information” by a consumer reporting agency, by a furnisher of data and by a user of a consumer report, if the activity is “authorized by” the FCRA. Reminder, the CCPA goes into effect January 1, 2020. Click here to review AB-1355, an amendment to the CCPA containing the proposed FCRA language.

USCIS officers can now create fictitious social media accounts to monitor information posted online by visa, green card, and citizenship applicants in order to detect fraud and security concerns. This change in policy comes after the Department of Homeland Security reversed a prior ban on officers creating fake profiles. How this will square with Twitter and Facebook’s policies against impersonation accounts is unknown. Facebook has yet to provide public comment, but Twitter has said, “[i]t is against our policies to use fake personae and to use Twitter data for persistent surveillance of individuals. We look forward to understanding USCIS’s proposed practices to determine whether they are consistent with our terms of service.” Click here to read more.