May 2018

Message from the Editor:

Welcome to another edition of ‘Inside Background Screening’ our new newsletter. Our goal is to bring to you cutting edge news and information about what is happening in the background screening world to help keep you informed and to position you to make the best possible hiring decisions.

We hope you enjoy ‘Inside Background Screening’ and that you will share your interest and thoughts with us.

Lorenzo

Lorenzo Pugliano

CEO
Lpugliano@nsshire.com

EMPLOYMENT SCREENING
May 2018


Woman Steals ID to Get Six-Figure Job, But Can’t Do the Work

Forty-one-year-old Cindy White of Louisiana was found guilty of
identity theft after she used another woman’s ID to get a job at
Diversified Food and Seasonings and was promoted to a senior
position with a six-figure salary. Her fraud was exposed after the
company realized she was having trouble with jobs that should
have been within her claimed ability and was delegating much of
her work. Investigators found that she copied another woman’s
resume from LinkedIn and stole her identity numbers from another
website.

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more


Appeals Court Says Prior Salary Doesn’t Justify Pay
Differences

Federal appeals court recently ruled that an employee’s salary
history is insufficient to justify pay differences between male and
female employees. The Equal Pay Act, adopted in 1963, requires
employers to pay men and women the same salary for equal work,
but it does provide four exceptions: a seniority system, a merit
system, a system that measures earnings by quantity or quality of
production and a differential based on any other factor other than
sex. The recent decision, which only applies to nine western states, overruled a 1982 case that allowed employers to base a pay differential on an employee’s prior salary history.

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more


I Hired Him Without Performing a Background Check. Then He Stole His Colleagues’ Identities

When three employers came to a senior HR manager at a foreign banking company claiming their identities had been stolen, he recognized an internal problem. After hiring an investigative company that specialized in fraud, it was discovered that a temp employee who was hired through an outside agency had been stealing information from personal files. The company learned two hard, but important, lessons: Quickly determine when something is outside of your element and know when it’s time to get help, and always perform background checks for temp employees.

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more

May 2018
LEGAL ISSUES
May 2018


Criminal Record Screening Policies Continue to Raise Important Compliance Issues

A recent settlement by Target reinforces the importance of employers to be vigilant with all applicable laws pertaining to criminal record screening policies. Plaintiffs in the case allege that Target’s criminal-record-screening policies had a disparate impact on African-American and Latino job applicants for store positions. The claim centered on the standards for assessing ex-offender job applicants as eligible or ineligible for employment. Over a period of several years, the parties negotiated a pre-litigation class-wide settlement that must be approved by a federal court. In early April, a settlement submitted by the plaintiff’s attorneys would require programmatic relief in addition to a monetary payment.

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Budding Development: States Requiring Employers to Tolerate Medical Cannabis Use

Changes in cannabis laws are causing some employers to think twice before denying employment to individuals because they tested positive for the use of marijuana that they are ingesting for state-authorized medical reasons. In Arizona, an employer may not discriminate because of a person’s status as a cannabis cardholder, unless failure to do so would cause an employer to lose certain benefits under federal law. Delaware law is similar, however, an employer can prohibit the ingestion, possession, or impairment of marijuana in the workplace. Employers in Maine cannot test applicants for cannabis unless they submit a request to the State of Maine that that request is approved. Employers there also cannot use a positive test for cannabis to prove that an employee is impaired by cannabis. Other states with similar laws include Minnesota, New York and California.

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more


Swimming Against the Tide, Michigan Forbids Salary History Bans Statewide

Michigan’s governor recently signed a bill that forbids localities from adopting salary history bans. The Bill, Senate Bill 353, prohibits local governments from adopting rules regulating the information that an employer or potential employer must request or exclude on an application for employment or during an interview process. While the Michigan Chamber of Commerce and other business groups supported the legislation, Democrats blasted the bill as an attack on local control and argued that it could hinder community efforts to address pay gaps. The legislation comes as several states and cities have moved to prevent employers from asking about applicants’ compensation history.

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The Truth Brings Relief Under FCRA

In Ratliff v. A&R Logistics, Inc., the plaintiff claimed A&R denied him a job based on a background check without the appropriate adverse action process. Ratliff alleged that the company failed to properly provide pre- and post-adverse action as set forth under the Fair Credit Reporting Act (FCRA) guidelines. A&R moved to dismiss, arguing that the plaintiff lacked Constitutional standing. The Northern District of Illinois agreed after it first considered whether an “informational injury” occurred. Ratliff failed to allege any inaccuracies that could cause concrete harm, therefore, no injury existed and the decision stood.

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Vitas Healthcare Corp. Employees Alleges Form Violates Fair Credit Reporting Act

Vitas Healthcare Corp. job applicant Jazzina Williams alleges she was provided a facially invalid authorization form when she applied for employment. The complaint states that the plaintiff signed background investigation authorization and release forms, but she alleges the form is unlawful because it includes a clause requiring applicants to “release from liability all persons, companies and governmental or other agencies disclosing such information.”

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Illinois District Court Finds Job Applicant Has No Standing to Bring FCRA Adverse Action Claim

The Northern District Court of Illinois recently confirmed that even if an employer fails to follow the proper procedure, an applicant may not have standing to bring an adverse action claim if the background check as issue is accurate. In Ratliff v. A&R Logistics, Inc., plaintiff Jerome Ratliff, Jr., claimed that the company declined to hire him based on his background check without following a proper adverse action process. A&R moved to dismiss the complaint on the ground that Ratliff had not suffered any injury-in-fact. Because Ratliff failed to allege that the background check on him contained any inaccuracies, he could not show any “informational injury.”

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Impending Necessary Ban-the-Box Updates for Criminal Record Inquiries in Massachusetts and San Francisco

Massachusetts enacted the Criminal Offender Record Information (CORI) Reform Act that includes a “Ban the Box” component. Recently, Gov. Charlie Baker signed amendments that place further restrictions on employers that inquire about prior criminal records. Taking effect Oct. 13, 2018, the important changes include: a provision that an employer shall not inquire into convictions for misdemeanors where the date of the conviction occurred three or more years from the date of application, unless there was an intervening conviction; the prohibition of an employer from asking an applicant about “a criminal record, or anything related to a criminal record, that has been sealed or expunged,” and a required application statement for those employers who seek “information concerning prior arrests or conviction of the applicant.” An amendment to San Francisco’s “Ban the Box” law also further restricts employees from considering criminal record information.

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more


New Vermont Pot Law: What Employers Need to Know

People 21 or older in Vermont soon will be legally permitted to possess limited quantities of marijuana and marijuana plants. Possession includes up to one ounce of marijuana or 5 grams of hashish and two mature or four immature plants. The law does not affect an employer’s ability to enforce rules on smoking or use of the drug in the workplace. The law does, however, prohibit the consumption of marijuana in a “public place” and doesn’t protect people who possess or consume marijuana from laws related to driving under the influence or consuming marijuana while driving. Businesses should consider drafting policy language that clarifies the company’s position on marijuana use.

May 2018

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DRUG SCREENING
May 2018

Iowa Drug Testing Law Amended: Lawsuits on the Rise

Iowa’s 10-page drug testing statute, enacted more than 30 years ago, includes provisions addressing permissible types of tests, written notice requirements, rehabilitation for positive alcohol test results, split-specimen testing, and mandatory supervisor training, among other things. The Governor recently signed an amendment into law that will allow employers to take action based on an alcohol test result of .02 grams of alcohol per two hundred ten liters of breath. In 2017, an amendment clarified that hair follicle testing is appropriate for pre-employment drug testing.

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Drug Testing: Is It Time for a Change?

The increase in the demand for workers has led to employers rethinking their drug testing practices. Many believe that overly broad testing eliminates valuable talent from the applicant pool, especially in states where marijuana has been legalized in some form. According to a recent Express survey, the majority of businesses lose job applicants because of drug test failures. In fact, 37 respondents said less than 5 percent of applicants do not pass a drug test and 13 percent said 5 to 9 percent do not pass.

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more

May 2018
IMMIGRATION & eVERIFY
May 2018

Ice Now Taking More Opportunistic Approach to Employer Sanctions

In what is believed to be the largest single workplace raid since 2008, U.S. Immigration and Customs Enforcement (ICE) took 97 people into custody at a meat processing plant in Tennessee. The facts underlying the raid show there is more inter-agency cooperation and a new emphasis on illegal immigration discovered than during other types of investigations. The government reportedly went to the facility to execute a criminal search warrant from the Internal Revenue Service’s Criminal Investigation Division, which led to an immigration investigation.


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DATA PROTECTION & PRIVACY
May 2018

GDPR Preparation

The General Data Protection Regulation (GDPR) due date is May 25, 2018 and there are several things that can be done in preparation for the big day. It is important to start by reading the GDPR in its entirety, especially the Recitals, which will give context for the Articles and also provide guidance on what is expected. In addition, strive to meet the GDPR requirements, as stated in the documentation. Other starting points include appointing someone for GDPR compliance; determining the functions of a Controller and Processor; making changes to Service Agreements with clients and vendors; updating Privacy Notices; completing the Records of Business Processing (Article 30); documenting compliance; and training staff.


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Disclaimer: All information presented is for information purposes only and is not intended to provide professional or legal advice regarding actions to take in any situation. Nationwide Screening Services makes no representations for any products or services that are mentioned and accepts no responsibility for any actions or consequences taken without the guidance of a licensed attorney or professional consultant

We’d like to hear from you! Please email us at info@nsshire.com

April 2018

Message from the Editor:

Welcome to another edition of ‘Inside Background Screening’ our new newsletter. Our goal is to bring to you cutting edge news and information about what is happening in the background screening world to help keep you informed and to position you to make the best possible hiring decisions.

Nationwide Screening Services will be exhibiting at the Long Island Business Expo on May 10th at the NYCB LIVE home of the Nassau Veterans Memorial Coliseum. Come visit us at Booth 502!

We hope you enjoy ‘Inside Background Screening’ and that you will share your interest and thoughts with us.

Lorenzo

Lorenzo Pugliano

CEO
Lpugliano@nsshire.com

EMPLOYMENT SCREENING
April 2018


Wisconsin Commission Finds Employers Cannot Consider Expunged Convictions – Even if Substantially Related to the Job

The Wisconsin Fair Employment Act prohibits employers from taking adverse employment action against an applicant or employee because of the individual’s conviction record, unless the conviction is “substantially related” to the position. Wisconsin law permits certain offenders who commit crimes before they reach the age of 25 to have their convictions expunged. In Staten v. Holton Manor (January 30, 2018), an applicant applied for a job as a certified nursing assistant at a skilled nursing facility. She disclosed on her application that she had been convicted multiple times, but that one of the convictions had been expunged. When she was not hired, the individual filed a charge of discrimination alleging the employer had violated the Wisconsin Fair Employment Act. The Wisconsin Labor and Industry Review Commission concluded that the employer could not rely on the expunged conviction when arguing that the individual’s conviction record was substantially related to the job.

April 2018

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LEGAL ISSUES
April 2018


9th Circuit Affirms Dismissal of FCRA Putative Class Action for Lack of Standing

The Ninth Circuit has ruled that the plaintiff in Bassett v. ABM Parking Services, Inc., et al., Case No. 2:16-CV-00947 (9th Cir. 1018) failed to allege a concrete injury-in-fact sufficient for Article III standing in a suit alleging a violation of the Fair Credit Reporting Act (FCRA). The panel applied Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), in which the Supreme Court emphasized Article II standing requires a concrete injury even in the context of a statutory violation. The panel also discussed the legislative history of the FCRA requirement to redact credit card expiration dates and concluded that the congressional judgment weighted against the plaintiff because Congress’ findings showed that a disclosed expiration date by itself posted minimal risk. And finally, the panel found the plaintiff’s alternative statutory theories of injury to be unpersuasive.

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Washington Ban the Box Law Limits Criminal Background Inquiries

Washington will become the next state to implement “ban the box” legislation in June. Governor Jay Inslee signed into law the Washington Fair Chance Act (WFCA) on March 13, which prohibits inquiries regarding applicants’ conviction histories until the employer has determined the applicant is “otherwise qualified” for the position. Some employers are excluded, including those hiring a person who will or may have unsupervised access to children under the age of 18 or a vulnerable adult or person, and any employer, including a financial institution, who is expressly permitted or required under any federal or state law to inquire into, consider or rely on information about an applicant’s or employee’s criminal record for employment purposes; among others. Maximum penalties begin with a fine of $750 for first violations and $1,000 for each subsequent violation.

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US Companies Doing Business in the EU or Impacting EU Individuals Must Comply with the EU GDPR by May 25, 2018

In a short two months, the European Union’s General Data Protection Regulation will take effect. The deadline for compliance is May 25, 2018. The GDPR significantly expands the jurisdiction of the EU’s data privacy framework to companies processing or controlling the personal data of employees or other individuals residing in the EU – regardless of the company’s location. The GDPR covers companies if it falls under one of the following tests: ‘establishment,” “goods and services” or “monitoring.” Among other heightened requirements and obligations, if a company is covered under the GDPR, it will be subject to stricter rules on obtaining employee consent to process and share personal data; it may have to appoint a data protection officer; and its employees will have greater rights with respect to access and control of their personal data.

April 2018

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DRUG SCREENING
April 2018

Maine Recreational Marijuana Law Limits Drug Testing, Disciplinary Consequences Imposed by Employers

Effective February 1, 2018, a provision of Maine’s recreational marijuana law prohibits employers from taking adverse employment actions for off-premises marijuana use. One of the provisions provides that employers are not required to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or growing of marijuana in the workplace. In addition, employers are permitted to enact and enforce workplace policies restricting the use of marijuana by employees and discipline employees who are under the influence of marijuana in the workplace. The law does, however, prohibit employers from “refusing to employ a person 21 years of age or older solely for that person’s consuming marijuana outside of the … employer’s property.”

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California Cities Drop Thousands of Marijuana Convictions

San Francisco and San Diego are moving to erase thousands of marijuana convictions en masse, which could be life-changing for some and helpful, especially, to minorities. San Francisco District Attorney George Gascon said he aims to “fix the harm that was done not only to the entire nation but specifically to communities of color.” Nine states have marijuana laws that allow people to clear or modify their records, according to the National Conference of State Legislatures.

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Hair or Saliva or Urine? Which is Best for Drug-Testing Job Candidates?

There are currently three primary methods for specimen collection for employers who want to create a safe and healthy workforce through drug screening. Urine testing is used by 90 percent of employers, according to HireRight, with saliva used by 10 percent and hair used by 7 percent. HIreRight’s Dr. Todd Simo noted that alternate specimens are gaining interest. “Both hair and oral fluid testing have had double-digit yearly growth as more companies become aware [of them],” he said. Urine and hair testing pick up many different drugs, such as prescription medications, while oral testing panels are typically screening for marijuana, cocaine, PCP, amphetamines and opioids.

April 2018

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IMMIGRATION & eVERIFY
April 2018

ICE to Employers: Expect More Form I9 Audits, Arrests and Outreach

Immigration and Customs Enforcement (ICE) agents conducted workplace raids on 77 businesses in San Francisco, Sacramento and San Jose in February and in early January, nearly 100 7-Eleven stores were targeted in the largest immigration enforcement operation conducted under President Donald Trump. Employers should expect this increase in worksite enforcement to continue. ICE audited 1,360 organizations in 2017, resulting in 71 indictments and 55 convictions of business owners and managers. But, as part of the ICE Mutual Agreement between Government and Employers voluntary compliance program, ICE and U.S. Citizenship and Immigration Services provide education and training on proper hiring procedures, fraudulent document detection and use of the E-Verify employment eligibility verification system, as well as certification for complying with the law.


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Response Protocol for I-9 Audit and Immigration Raid

A Form I-9 Audit begins when Immigration and Customs Enforcement (ICE) serves a Notice of Inspection to a company representative requesting a review of the company’s I-9 forms for every employee. ICE may not request any personnel file that goes beyond a current and past employees list with social security information. A Notice of inspection must be served at least three days before ICE conducts the audit. ICE may arrive at a place of business in its enforcement capacity by making an unannounced visit to the workplace to search the premises, question employees, and review documents. In order to carry out this type of “raid,” ICE must apply for a judicial search warrant based on evidence such as noncompliance during an I-9 audit. Employers should consider designating one employee as a “Response Lead” at each corporate location that is deemed of potential interest to ICE.

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more

April 2018
Disclaimer: All information presented is for information purposes only and is not intended to provide professional or legal advice regarding actions to take in any situation. Nationwide Screening Services makes no representations for any products or services that are mentioned and accepts no responsibility for any actions or consequences taken without the guidance of a licensed attorney or professional consultant

We’d like to hear from you! Please email us at info@nsshire.com

March 2018

Message from the Editor:

Welcome to another edition of ‘Inside Background Screening’ our new newsletter. Our goal is to bring to you cutting edge news and information about what is happening in the background screening world to help keep you informed and to position you to make the best possible hiring decisions.

We hope you enjoy ‘Inside Background Screening’ and that you will share your interest and thoughts with us.

Lorenzo

Lorenzo Pugliano

CEO

Lpugliano@nsshire.com

EMPLOYMENT SCREENING

March 2018


Jury Awards Nearly $70.6 Million in Yacht Rape Case

A stewardess on board the Endless Summer yacht, docked at Universal Marine Center in Fort Lauderdale in 2015, was awarded nearly $70.6 million in damages after she sued the yacht’s owner following an incident involving the yacht’s deckhand. Rafael Dowgwillowicz-Nowicki was arrested and charged with four counts of sexual battery after the woman reported he entered her cabin drunk and forced her to have sex with him, threatening to kill her if she did not go along with it. The lawsuit alleged that the yacht’s owner failed to provide proper security for the victim.

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more

Salary History Question Off Limits on Job Applications: What
Should Employers Do to Stay Compliant?

California recently joined a growing number of cities and states to pass a law that bans salary history questions. Prompted by concerns about gender- and race-based wage discrimination, the law is designed to prevent employers from using past compensation as a basis for current salary and benefits negotiations with job applicants. According to the U.S. Equal Employment Opportunity Commission (EEOC), 7,050 equal pay discrimination charges were filed against employers over a six-year time span. Employers can ensure compliance by removing all questions relating to salary history from job applications; revising screening and interviewing methods; and training hiring managers to ask the right questions.

March 2018

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LEGAL ISSUES

March 2018


Does Your State Ban the Box with Job Applications? What You Need to Know

As of September, more than 150 cities and counties and 29 states have adopted laws that limit what employers can ask job applicants. The “ban the box” legislation is designed to give individuals with a criminal history a fair chance at employment. The law, however, goes beyond requiring employers to remove a check box from application forms. It is important for businesses to become familiar with state and local laws, implement an attorney-approved, state-specific job application and modify hiring procedures to delay any criminal history inquiries until legally allowed.

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EEOC’s Background Check Guidance Suffers Loss in Texas Federal Court

In early February, a federal judge enjoined the Equal Employment Opportunity Commission (EEOC) and U.S. Attorney General from enforcing against the State of Texas the EEOC’s 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (the “Guidance.”) The summary judgment was granted for the State of Texas on the basis of the EEOC’s issuance of the Guidance without providing notice to the public and an opportunity to comment, as required under the Administrative Procedures Act (APA). The EEOC continues to press lawsuits against employers concerning the use of criminal records for hiring and other employment purposes.

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Kansas City, Missouri, Enacts Ban-the-Box-Plus Ordinance

In early February, the Kansas City, Missouri City Council passed restrictions on employers’ inquiries into, and use of, criminal record information. Effective June 9, 2018, employers may not inquire about an applicant’s criminal history until after it has been determined that the individual is otherwise qualified for the position, and only after the applicant has been interviewed for the position. Before the effective date, employers are advised to revise job applications, interview guidelines and policies; review and make necessary changes to the sequence and timing of asking about an applicant’s criminal history; and implement guidelines and documentation that comply with the new Ordinance.

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Can Employers Legally Give a Bad Reference

Stephen Shore, partner at Ogletree Deakins International LLP, said that, while some employers often may shy away from giving a bad reference out of concern for a law suit, someone going to court over this situation is very rare. At the same time, he added, it is in an employer’s best interest that an outgoing employee find re-employment as soon as possible and a positive review can help secure a job. Either way, offering a truthful, objective commentary about the employee that can be defended with evidence, if necessary, is the best way to arm up against lawsuits.

March 2018

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DRUG SCREENING

March 2018

Testing Applicants

This month, Maine has become the first jurisdiction in the nation to protect workers from adverse employment action based on their use of marijuana and marijuana products. The “Question 1 – An Act to Legalize Marijuana” (The Act) was approved in November by Maine voters, which would permit the recreational use, retail sale and taxation of marijuana. The anti-discrimination provisions of the Act prohibit employers from refusing to employ or otherwise penalizing any person age 21 or older based on that person’s “consuming marijuana outside … the employer’s … property.” The Act does, however, allow employers to prohibit the use and possession of marijuana and marijuana products “in the workplace” and to “discipline employees who are under the influence of marijuana in the workplace.”

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The True Cost of Marijuana Legalization

CNN Money recently reported that $18 billion in tax revenue could be created if marijuana were legalized nationwide. But the benefits – both in terms of crime rates, health and revenue – are under scrutiny. Bills on the federal level have been introduced in both the House and the Senate that would not only allow marijuana-focused businesses to use the banking system, but would also remove marijuana as a Schedule I substance. Doing so may have detrimental effects on disability and worker’s compensation claims, drug testing, rent cost and litigation. Supporting the legalization of marijuana could lead to, among other ill effects, inconsistent work quality, poor concentration and lack of focus, and lowered productivity or erratic work patterns.

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Opioids, Marijuana and Substance Abuse Issues Present Both Familiar and Groundbreaking Challenges to Employers

With the advent of marijuana decriminalization and expanded use for medicinal purposes, the legal and human challenges regarding the opioid crisis also are expanding. One of the most challenging issues is knowing how and when to address an employee who appears to be struggling with an addiction issue. If the employer does choose to confront the employee, who denies addiction and refuses assistance, clear expectations for behavior and performance should be made clear. Other considerations include the return of an employee after rehab is completed, struggling family members and recreational or medicinal use of marijuana. Employers can prepare by enacting an employee assistance program (EAP), reviewing benefits offerings, updating policies and involving employees in community service or educational programs around mental health wellbeing.

March 2018

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DATA PROTECTION & PRIVACY

March 2018

6 Steps to Put HR on Track for GDPR Compliance with Employee Data

Workday’s chief privacy officer has offered six steps to help human resource teams bring employee data up to speed with the upcoming General Data Protection Regulation (GDPR). The deadline for compliance is May 25, but as many as 50% of companies affected will not be fully prepared. Those affected should start by inventorying the personal data that they currently have on employees. Corralling this pertinent information into one system is critical, as is determining who will have access. Communicating with and training employees about the GDPR will help to ensure compliance and it is helpful for companies to keep in mind that compliance will not only boost productivity and performance, but increase trust with employees and customers.


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March 2018

Disclaimer: All information presented is for information purposes only and is not intended to provide professional or legal advice regarding actions to take in any situation. Nationwide Screening Services makes no representations for any products or services that are mentioned and accepts no responsibility for any actions or consequences taken without the guidance of a licensed attorney or professional consultant

We’d like to hear from you! Please email us at info@nsshire.com

February 2018

Message from the Editor:


Welcome to another edition of ‘Inside Background Screening’ our new newsletter. Our goal is to bring to you cutting edge news and information about what is happening in the background screening world to help keep you informed and to position you to make the best possible hiring decisions.

We hope you enjoy ‘Inside Background Screening’ and that you will share your interest and thoughts with us.

Lorenzo

Lorenzo Pugliano

CEO
Lpugliano@nsshire.com

EMPLOYMENT SCREENING
February 2018


California’s Salary History Ban Answers to Frequently Asked
Questions

As of
2018, California employer are prohibited from asking
job applicants about their salary histories, including compensation
and benefits, both personally and through an agent. Applicants
may still “voluntarily and without prompting” disclose their own
salary history information. Employers are permitted to an
applicant’s previous employer to verify prior history after a job offer
has been made. Upon reasonable request, employers now are
required to provide a pay scale for a position being a applied for.

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more

GDPR: The Three Big Risks to Your Business

With the General Data Protection Regulation looming just around
the corner in May, information security experts Citrix has examined
the major risks that could impact British firms as they grapple with
compliance. Three major risks were determined, including data
sprawl, information overload and data ownership. The average firm
uses no fewer than 24 systems to store and manage personal
data, with 21% using more than 40 systems. This could lead to the
next major problem: information overload, which simply means
having too much data to deal with. Finally, data ownership is anarea of real uncertainty for firms, many of which are unsure if they
or the customer owns the personal information.

February 2018
LEGAL ISSUES
February 2018


Ohio Appellate Court Dismisses FCRA Class Claim for Lack of
Article III Standing, Citing Spokeo

In early December, a Court of Appeals for the state of Ohio
affirmed dismissal of a putative Fair Credit Reporting Act (FCRA)
class claim against Ohio State University on the basis that the
plaintiffs lacked standing to assert their no-injury, statutory claim in
Ohio state court. Two years after being hired in 2012 and 2014 as
a facility manager and housekeeper, the plaintiffs filed suit against
OSU under the FCRA, alleging that OSU provided a background
check disclosure and authorization to each of them that improperly
included extraneous information and a liability release. In June
2016, the United States District Court for the Southern District of
Ohio, Eastern Division, determined that the appellants failed to
allege that they sustained any injury-in-fact.

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more


Check Those Pre-Adverse Action Letters – New California Law
Goes into Effect

California Government Code 12952 went into effect in early
January, which will regulate how employers can use criminal
background checks in the hiring process. The law is unique in that
it contains new requirements as to what a potential employer must
include in a pre-adverse action letter to job applicants – beyond
what the federal Fair Credit Reporting Act (FCRA) already
mandates.

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more


Military Contractor Hit with FCRA Putative Class Action over
Background Checks

L3 Technologies, Inc., a military contractor, recently was hit with a
Fair Credit Reporting Act (FCRA) putative class action in California
federal court, alleging that it violated the “stand-alone” disclosure
requirement in its background reports. Joseph Estes was hired by
L3 and worked as a mechanic for the company in California, but,
during the application process, was asked to fill out a “Background
Investigation Consent” form permitting L3 to obtain a background
report on him. He claims the company violated the FCRA’s
requirement that businesses obtaining a consumer report for
employment purposes must notify the applicant of that request in a
separate document.

February 2018

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DRUG SCREENING
February 2018

Opioid Testing by Employers is Becoming More Common

The opioid epidemic has resulted in more employers testing for
these painkillers in the workplace. Effective Jan. 1, the U.S.
Department of Transportation (DOT) requires employers regulated
by the department to conduct opioid testing, which applies to
commercial motor vehicle drivers, flight crew and other aviation related
workers,railroad employees,transit workers, certain pipe line employees and marine employees regulated by the U.S. Coast Guard. But employees other than those not regulated by the DOT are questioning whether it is legal to implement drug testing. According to the executive director of the Drug & Alcohol Testing Industry Association, employees can test specifically for opioids as long as they are following state drug testing laws, a medical officer reviews positive results, and drug-free workplaces clarify which substances are prohibited.

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Can You Still Fire a Pot-Smoking Employee in California?

It is important for both employers and employees to understand
that the new laws permitting recreational marijuana use in
California does not impact employers’ rights to maintain and
enforce drug-free workplace policies and drug testing policies.
Under federal law, marijuana remains a Schedule 1 drug that is
prohibited under the Controlled Substances Act, and the California
Supreme Court held in 2008 that an employer lawfully may enforce
a policy of refusing to hire an applicant who tests positive for
marijuana, even if the employee was using the marijuana for
medical purposes.

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Employee Use of Marijuana: The Law is Hazy for Employers

The City of Atlanta passed an ordinance in the fall that
decriminalized the possession of less than one ounce of
marijuana. Individuals found with such small amounts will not be
fined and face no jail time. Georgia enacted a law in 2017 that
expanded the qualifying medical conditions for which cannabis oil
may be used legally, which includes the possession of 20 ounces
of oil with up to a five percent THC level with doctor’s approval.
Twenty-eight states and Washington D.C. have enacted similar
laws surrounding various use of marijuana and courts have begun
to address whether an employee’s use of medical marijuana can
be a reasonable accommodation under the Americans with
Disabilities Act and similar state laws.

February 2018

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EVERIFY & IMMIGRATION STATUS
February 2018

Form I-9 Worksite Enforcement Expected to Ramp Up in 2018

President Donald Trump’s administration has signaled that the
number of Form I-9 employment eligibility verification audits will
significantly escalate in 2018. The Immigration and Customs
Enforcement (ICE) plans to increase worksite investigations of
employers by four or five times. Size is not a factor when it comes
to ICE audits of workers’ employment eligibility.


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How to Avoid Common Form I-9 Violations

Fines for knowingly hiring or continuing to employ unauthorized
workers can reach as much as $16,000 per violation. These four
important areas will help employers avoid common Form I-9
violations. 1. Form I-9 must be retained for three years after the
date of hire or one year after the date of termination, whichever is
later. 2. Though there is no legal requirement that Forms I-9 be
stored separately from the employment file, it is a good idea to do
so. 3. New hires must be allowed to select documents of their
choice from the lists accompanying Form I-9, however, none of
these documents can be expired. 4. If a mistake or error is found
on a Form I-9, it is important that employers never erase, use
white-out or otherwise render the initial information unreadable.

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more

Immigration Agents Raid Dozens of 7-Eleven Stores

In what began with a four-year-old case against a franchisee in
Long Island, New York, agents targeted about 100 7-Eleven stores
nationwide to open employment audits and interview workers.
President Trump’s sharp expansion of immigration enforcement
has already brought a 40 percent increase in deportation arrests.
Illegal hiring rarely is prosecuted, partly because investigations are
time-consuming and convictions are difficult to achieve because
employers can claim they were duped by fraudulent documents or
intermediaries. The 7-Eleven stores served on Wednesday will be
required to produce documents showing they require work
authorization. Audits may lead to criminal charges or
administrative penalties.

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more

February 2018
Disclaimer: All information presented is for information purposes only and is not intended to provide professional or legal advice regarding actions to take in any situation. Nationwide Screening Services makes no representations for any products or services that are mentioned and accepts no responsibility for any actions or consequences taken without the guidance of a licensed attorney or professional consultant

We’d like to hear from you! Please email us at info@nsshire.com

January 2018

January 2018
Message from the Editor:

Happy New Year! We hope you have a very happy and prosperous news year.

Welcome to another edition of ‘Inside Background Screening’ our new newsletter. Our goal is to bring to you cutting edge news and information about what is happening in the background screening world to help keep you informed and to position you to make the best possible hiring decisions.

We hope you enjoy ‘Inside Background Screening’ and that you will share your interest and thoughts with us.

Lorenzo

Lorenzo Pugliano

CEO
Lpugliano@nsshire.com

 

EMPLOYMENT SCREENING

Woman Steals Nurse Identity to Work in St. Louis Hospitals’ ICU

A woman in St. Louis has pleaded guilty in U.S. District Court in St. Louis to healthcare fraud and identity theft after she lied about her nursing credentials to work at a St. Louis hospital and teach nursing at a New Mexico college. Thirty-six-year-old Samantha Rivera pretended to be a nurse in 2015, when she lied about her resume to get a job teaching nursing at Brown Mackie College in New Mexico. In 2016, she secured a job at a hospital in St. Louis by using the name and license number of a New Mexico nurse with a similar name to apply for a job through a staffing agency. She also falsely claimed to have a bachelor’s degree in nursing and experience working in the field. Rivera faces up to 16 months in federal prison.

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Anatomy (and Costs) of a Bad Hire

A recent CareerBuilder survey has revealed that companies lost an average of $14,900 per bad hire made in 2017. Thirty-five percent of the respondents claimed that the number one reason for making a bad hire was that the candidate didn’t have all the needed skills for the position. Other factors include a candidate lying about qualifications, taking a risk on a “nice” person and pressure to quickly fill a role. Making a bad hire doesn’t just stop with one person, though, either. Studies show that poor performers lower the bar for other workers on their teams. While the impact of a bad hire affects productivity, quality of work and the time to recruit and train a replacement, CareerBuilder said that it’s losing a better candidate that is the worst part of making a bad hire.

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LEGAL ISSUES


In the Continuing Battle Over Standing, Fair Credit Reporting Act Class Action Plaintiffs Must Show Actual Injury for Failure to Provide Stand Alone Notice

Employers who don’t comply with regulations of the Fair Credit Reporting Act (FCRA), including for violations like failure to provide notice to applicants in a stand-alone format and getting written permission before running the background check, could face expensive and time-consuming class action lawsuits of up to $1,000 per violation. But, after the “concrete injury” Supreme Court decision in Spokeo, Inc. v. Robins, federal courts have a heightened sensitivity to standing issues and have a new sense of protection as a result. If no harm can be demonstrated, employers can breathe easy, even if they have made a mistake.

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States and Cities Line Up to Ban Salary History Questions

While the laws regarding asking job applicants about their salary histories vary between jurisdictions, they generally aim to prevent employers from asking salary-related questions or from screening job candidates based on salary histories until after an offer is formally made. Some laws include the prohibition of contacting an applicant’s former company without the candidate’s written consent and, in California, employers must provide applicants with the pay scale assigned to the relevant position. States, cities, counties and localities that have put into place or have plans to implement such laws include Delaware, Albany County, California, Puerto Rico, San Francisco, Massachusetts, and Philadelphia.

 

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Waffle House Job Applicants Consolidate Background Check Class Action

A class action lawsuit has been filed by Waffle House job applicants who claim the company violated the Fair Credit Reporting Act (FCRA). The complaint consolidates claims brought by 23 plaintiffs in two Waffle House class action lawsuits filed earlier this year. Waffle House has been accused of using background checks to make employment decisions without giving job applicants the required notice and opportunity to explain or correct the information in those background checks. The first claim was filed in April and alleges that background screening company Public Data provided cheap services without FCRA compliance. In the second lawsuit, a 20-year employee claims he was denied a new job after he was never given the chance to explain or correct findings of a background check.

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DRUG SCREENING

State Marijuana Laws: Employers Get by with a Little Help from their Lawyers

The knowledge that the influence of drugs or alcohol can cause significant safety problems, reduce productivity and impact workplace morale has been complicated for many employers with the uptake in revisions to state marijuana laws. The drug is classified under “Schedule 1”, which means that federal law views it as highly addictive, with no medical value. Even so, trial courts in both Connecticut and Rhode Island have recently held that, despite federal law, an employer violates state law when it refuses to hire an employee who fails a marijuana test but is eligible for medical marijuana under state law.

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DOT Notice Provides Guidance on How the Use of Medical Marijuana Will Affect Drug Testing Results

In an updated “Medical Marijuana Notice,” the Department of Transportation (DOT) stated that the use of medical marijuana, pursuant to state law, does not constitute a legitimate medical reason for a positive drug test. The Notice makes it clear that marijuana remains illegal under federal law and DOT expects that Medical Review Officers (MROs) will treat its use as illegal. In addition, “MROs will not verify a drug test as negative based upon information that a physician recommended that the employee use ‘medical marijuana.’” As such, even when a non-DOT regulated employee tells the MRO that he or she is certified to use medicinal marijuana, the test results still will be certified as positive.

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DOT Updates Drug Testing Panel to Include Opioids

Effective January 1, 2018, opioids will be included in the drug testing program of the Federal Department of Transportation (DOT). Testing will now include hydrocodone, hydromorphone, oxymorphone and oxycodone and applies not only to specimen testing validity values, but also to initial and confirmatory testing values. Methylendioxyamphetamine has been added as an initial test analyte, while methylenedioxyethylamphetamine has been removed as a confirmatory test analyte. The revisions harmonize DOT testing with the US Department of Health and Human Services’ (HHS) Mandatory Guidelines that were revised earlier this year.

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EVERIFY & IMMIGRATION STATUS

Employers Prepare Themselves for the I-9 Squeeze

The 30th Annual AILA California Chapter conference revealed trends in travel bans, provided updates on recent policy changes in immigration adjudications and focused on the Trump Administration’s intention to tighten immigration rules and ramp up enforcement at every level of the federal government. But there also was a focus on California’s Immigrant Worker Protection Act (AB 450). The law regulates five broad areas related to I-9 inspection practices and policies, including 1. Access to an employer’s place of business, 2. Access to an organization’s employee records, 3. Notice to employees of I-9 inspections, 4. Notice to employees of I-9 audit results and 5. Reverification of current employees.


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New I-9 FAQs on Transgender Employees, E-Verify Time Zone Issues, Closing Cases, and More!

Five recent Form I-9 and E-Verify updates will lead to changes in compliance procedures and processes for the upcoming year. The United States Citizenship and Immigration Services (USCIS) has confirmed updates and changes regarding “Form I-9 and Transgender Employees,” space issues for “Additional Other Last Names Used,” “E-Verify Time Zone Guidance,” “E-Verify TNC Guidance,” and “E-Verify Automation Guidance.”

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more

January 2018 Message from the Editor:

Happy New Year! We hope you have a very happy and prosperous news year.

Welcome to another edition of ‘Inside Background Screening’ our new newsletter. Our goal is to bring to you cutting edge news and information about what is happening in the background screening world to help keep you informed and to position you to make the best possible hiring decisions.

We hope you enjoy ‘Inside Background Screening’ and that you will share your interest and thoughts with us.

Lorenzo

Lorenzo Pugliano

CEO
Lpugliano@nsshire.com

EMPLOYMENT SCREENING LEGAL ISSUES DRUG SCREENING EVERIFY & IMMIGRATION STATUS
January 2018
Message from the Editor:

Happy New Year! We hope you have a very happy and prosperous news year.

Welcome to another edition of ‘Inside Background Screening’ our new newsletter. Our goal is to bring to you cutting edge news and information about what is happening in the background screening world to help keep you informed and to position you to make the best possible hiring decisions.

We hope you enjoy ‘Inside Background Screening’ and that you will share your interest and thoughts with us.

Lorenzo

Lorenzo Pugliano

CEO
Lpugliano@nsshire.com

EMPLOYMENT SCREENING
LEGAL ISSUES
DRUG SCREENING
EVERIFY & IMMIGRATION STATUS
Disclaimer: All information presented is for information purposes only and is not intended to provide professional or legal advice regarding actions to take in any situation. Nationwide Screening Services makes no representations for any products or services that are mentioned and accepts no responsibility for any actions or consequences taken without the guidance of a licensed attorney or professional consultant

We’d like to hear from you! Please email us at info@nsshire.com

DECEMBER 2017

Message from the Editor:

Welcome to ‘Inside Background Screening’ our new newsletter. Our goal is to bring to you cutting edge news and information about what is happening in the background screening world to help keep you informed and to position you to make the best possible hiring decisions.

We hope you enjoy ‘Inside Background Screening’ and that you will share you interest and thoughts with us.

Lorenzo

Lorenzo Pugliano

CEO
Lpugliano@nsshire.com

LEGAL ISSUES
DECEMBER 2017

Employers Should Share All Background Check Reports Before Revoking Job Offers

It was ruled by a federal judge that an employer did not comply with requirements of the Fair Credit Reporting Act (FCRA) when it failed to send a rejected candidate a final background check report and required notices. Lemuel Wright argued that Lincoln Property Company violated the FCRA when it failed to provide him with time to contest a criminal background check and drug screening report before an adverse decision was taken. In addition, the plaintiff claimed he was not provided with a copy of the pertinent consumer report. The company decided to revoke the offer of employment based on his felony convictions that were included in both the preliminary and final reports, but the court denied their motion for summary judgment and concluded that a jury should resolve the dispute.

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High Alert for California Employers and Employers Nationwide for the Second Wave of FCRA Class Actions

Employers in the state of California are being urged to stay alert and remain vigilant when it comes to the Fair Credit Reporting Act (FCRA), as the plaintiff’s bar continues to pursue actions against employers that operate in plaintiff-friendly jurisdictions. The FCRA imposes requirements on employers who use “consumer reports” or “investigative consumer reports” for “employment purposes.” The requirements could be broken down into two categories – those guidelines employers must follow before obtaining a consumer report and those that must be followed if they intend to take “adverse action.” The increase in California FCRA suits could be blamed on several factors: statutory damages, concurrent jurisdiction in state courts, California’s FCRA, and plaintiff-friendly rulings in the Ninth Circuit.

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Federal Judge Rules State Sex Offender Registry is Unconstitutional

A judge in Colorado has ruled that listing offenders’ personal information, such as names and addresses, gives the public the power to punish beyond what the court has deemed appropriate. He also ruled that the Colorado Sex Offender Registration Act violates the 14th Amendment process of rights. The judge has argued than an individual assessment should be considered for each case. The Attorney General’s Office could appeal the ruling to the 10th Circuit Court of Appeals.

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Pepsi Class Action Claims Company Violated Federal Law

Altareek Grice has alleged in a class action lawsuit against Pepsi that the company obtained a consumer report from him without his knowledge or permission when he applied for a job at a bottling plant. He claims Pepsi failed to meet Fair Credit Reporting Act (FCRA) regulations when it didn’t use proper disclosures during the background check. Violations of the FCRA could lead to up $1,000 in fines. Grice represents a nationwide class of individuals that applied for positions with Pepsi and is limited to those who sought employment within the past two years. This could include more than 1,000 members.

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DRUG SCREENING
DECEMBER 2017

Opioid Crisis in U.S. Spills into Workplace

It’s no secret that drug abuse in the workforce is a growing challenge for American businesses. A Baltimore food-processing plant practices a zero-tolerance policy in which one randomly chosen employee gets tested each month. It is costly to hire a third-party company and pay the clinic to conduct the test, but the business is certainly not a good place to be intoxicated. According to the National Safety Council, 57 percent of employers say they drug test employees. And with opioids killing about 33,000 Americans in 2015, federal government employees who use drug tests will be required to submit to a more extensive screening. The opioid crisis has caused hiring difficulties, a slowing economy for the country, and dangerous alternatives to painkillers.

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more

Niffsinger v. SCC Niantic Operating Co.: What Does the Connecticut Ruling Mean for Employers

With more than half of the country passing laws that permit the use of marijuana, businesses are advised to become familiar with new laws. The drug remains on Schedule 1 under the Federal Controlled Substances Act (CSA), in the same category with heroin. Regardless of state regulations, possession of marijuana remains a federal crime. A recent federal trial in Connecticut ended with the decision that an employer can be sued by a prospective employee after withdrawing a conditional offer of employment due to a positive drug screening for marijuana. Noffsinger v. SSC Niantic Operating Co. was a case of first impression in which the court held that the federal law does not preempt the Connecticut Palliative Use of Marijuana Act (PUMA).

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EVERIFY & IMMIGRATION STATUS
DECEMBER 2017

ICE Announces Up to Five-Fold Increase in Form I-9 Worksite Inspections

In an effort to continue to promote homeland security and public safety, Immigration and Customs Enforcement (ICE) Acting Director Thomas Homan announced a significant increase in worksite related investigations. Worksite enforcement is an important component of ICE’s overall strategy. There are a number of proven strategies that employers can initiate immediately to address the risks of an ICE worksite audit. Compliance awareness with an emphasis on the importance of the I-9 form is a great first start. Conducting a self-audit is the best way to uncover I-9 errors and omissions, and the creation of an internal handbook that specifically documents how I-9 forms will be completed and reviewed for accuracy demonstrates good faith and serves as a great training document. Finally, the use of an electronic I-9 system helps ensure compliance moving forward.


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ICE Levies Largest Settlement Ever: Asplundh Tree Expert Co to Pay $95 Million Dollars

Asplundh Tree Expert Co. has been ordered to pay $95 million in the largest fine against a company for hiring thousands of immigrants who did not have permission to work in the United States. The 90-year-old company with 30,000 employees employed thousands of undocumented workers between 2010 and 2014. The company must forfeit $80 million in addition to paying a $15 million civil penalty for not complying with immigration law. In 2009, Asplundh fired hundreds of employees who were ineligible to work in the United States, later rehiring them under different names or false documents.


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Rep. Lamar Smith Introduced Mandatory E-Verify Bill

Rep. Lamar Smith reintroduced the Legal Workforce Act, H.R. 3711, a bill that would require all employers to use E-Verify within two years. Smith believes that by expanding the E-Verify system, jobs will only go to legal workers. The Legal Workforce Act repeals the current paper-based I-9 system and phases in mandatory E-Verify participation for new hires in six-month increments. It also requires that employees performing “agricultural labor of services” are only subject to the check within 30 months of the date of enactment. The bill preempts duplicative state laws mandating E-Verify use but retains the ability of states and localities to condition business licenses. It also protects against identity theft by allowing individuals to lock their social security number.

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DECEMBER 2017
Disclaimer: All information presented is for information purposes only and is not intended to provide professional or legal advice regarding actions to take in any situation. Nationwide Screening Solutions. makes no representations for any products or services that are mentioned and accepts no responsibility for any actions or consequences taken without the guidance of a licensed attorney or professional consultant

We’d like to hear from you! Please email us at info@nsswide.com