AGG Compliance News Flash – August 9, 2019

A major worksite enforcement operation targeting employers and employees’ work authorization took place this week. Immigration and Customs Enforcement (ICE) targeted seven agricultural processing plants in Mississippi, arresting approximately 680 people the agency said were undocumented immigrants. This could be the tip of the iceberg for employers to be aware of with respect to whether ICE incorporates more raids of worksites into its enforcement efforts, as opposed to ICE agents showing up and issuing a Notice of Inspection (NOI) requesting (as they can under the law) to review an employers’ employment eligibility verification forms (the “Forms I-9”). An NOI kicks off an investigation into an employer’s compliance with the Form I-9 paperwork requirements and also to determine whether they are hiring/employing undocumented workers. Click here and click here to read more.

Immigration and Customs Enforcement (ICE) has revamped its IMAGE program in the hope more employers will enroll. According to ICE, “IMAGE is a voluntary partnership initiative between the federal government and private sector employers. The initiative is designed to foster cooperative relationships and to strengthen overall hiring practices. ICE has developed this initiative as a new concept for employer self-compliance within the worksite enforcement program, through which employers can achieve a lawful workforce through self-policing of their hiring practices.” Employers can voluntarily become IMAGE members. As an IMAGE member, employers agree to an audit of their Forms I-9 by ICE and to participate in E-Verify. ICE has revamped the program to encourage greater participation, including new features such as (i) waiving any applicable fines if any technical or substantive violations are discovered on the Forms I-9 reviewed as part of the inspection conducted, as long as there is no evidence of a criminal violation; and (ii) ICE will not conduct another Form I-9 inspection of the company for a four-year period. Click here to read more.

Pennsylvania’s Clean Slate law goes into effect, which automatically seals eligible criminal records in an effort to provide ex-offenders with greater employment opportunities. Governor Wolf originally signed House Bill 1419, the “Clean Slate” bill in 2018. The law allows for individuals to petition the courts for their records to be sealed if a person has been free from conviction for 10 years for an offense that resulted in a year or more in prison and has paid all court-ordered financial debts. Additionally, it allows automatic sealing of records for second or third-degree misdemeanor offenses that included a less than two-year prison sentence if a person has been free from convictions for 10 years, as well as sealing of criminal history records related to charges that resulted in non-convictions. Sealed records will not/should not show up on background checks. Click here and click here to read more.

ICYMI, the Federal Trade Commission (FTC) reached a settlement with a background screening company over allegations that it falsely claimed to be a participant in the EU-U.S. Privacy Shield program (“Privacy Shield”). Separately the FTC sent warning letters to 13 companies for falsely claiming to participate in the Privacy Shield program. This is low hanging fruit for the FTC. A company cannot claim to participate in a program that it is not actually a certified participant in. Privacy Shield is a voluntary program that allows companies to transfer European Union (EU) data subjects’ personal data from the EU to the United States. It is one of the lawful mechanisms by which to transfer personal data to the United States. Saying you are Privacy Shield certified on your website or privacy policy, when in fact you are not, is a violation of the Federal Trade Commission Act. Click here and click here to read more.

Cannabis, employment and drug testing. New York City and Nevada are two places where it will be unlawful for employers to reject a job applicant who tests positive for cannabis on a pre-employment drug test. Nevada’s law reads, “it is unlawful for any employer in this State to fail or refuse to hire a prospective employee because the prospective employee submitted to a screening test and the results of the screening test indicate the presence of marijuana.” There are exceptions to the law, including for firefighters, EMS employees, employees required to operate a motor vehicle, or where the safety of others is adversely affected. The law becomes effective January 1, 2020. Click here to read the law.