Arnall Golden Gregory LLP is pleased to provide you with the Compliance News Flash. This update is your source for timely background screening and immigration-related news that is important to your organization.

Just a reminder that Canada’s new mandatory breach notification law went into effect November 1, 2018. The Digital Privacy Act amended Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA) to include a mandatory breach notification requirement. Earlier this year the Canadian government issued its Breach of Security Safeguards Regulations describing the reporting requirements, including enacting specific security safeguards and notifying Canada’s Privacy Commissioner if there is a data breach. Organizations that experience a data breach resulting in a “real risk of significant harm” must notify Canada’s Privacy Commissioner and affected individuals. Organizations must also keep records of every breach of security, regardless if there is “real risk of significant harm.” PIPEDA defines a data breach as a “loss of, unauthorized access to, or unauthorized disclosure of personal information resulting from a breach of an organization’s security safeguards or from a failure to establish those safeguards.”

  • The Department of Justice’s Immigrant and Employee Rights Section (IER) has been on an enforcement tear of late announcing multiple settlements with a hotel chain, cookie retailer, and a poultry processing company related to discrimination claims with respect to the employment eligibility verification form (the “Form I-9”). Violations are brought under the Immigration and Nationality Act (INA) for violations of the anti-discrimination provision. One settlement related to citizenship status discrimination against an asylee because he was removed from the hiring process because he was not a lawful permanent resident or U.S. citizen. Another settlement was because the employer required lawful permanent residents to provide specific documentation issued by the Department of Homeland Security to prove their work authorization, while not imposing this requirement on U.S. citizens. And finally, IER settled a longstanding case against an employer for allegedly routinely requiring work-authorized non-U.S. citizens to present a document issued by the Department of Homeland Security, such as a Permanent Resident Card or Employment Authorization Document, to prove their work authorization, but not requiring the same of U.S. citizens. All violations of the anti-discrimination provision of the INA.
  • The U.S. District Court for the Southern District of California approved a $1.2 million settlement with two plaintiffs who claimed that Petco’s background check policies violated the Fair Credit Reporting Act in two ways. First, because they did not afford them the proper disclosure nor properly capture their authorization for the background check. And second, because Petco allegedly failed to provide the required pre-adverse action notice to applicants against whom it took an adverse action related to their employment and based on information in the background check report. The class-action lawsuit consisted of a class of approximately 37,000 job applicants between the two classes. To read more, click here. The lawsuit is Feist, et al. v. Petco Animal Supplies Inc., Case No. 3:16-cv-01369.
  • Local jurisdictions continue to enact Ban the Box ordinances and salary history bans, as well as issue regulations interpreting these laws. First stop, New York. Westchester County passed a law prohibiting employers from inquiring about an applicant’s criminal conviction or arrest record in employment applications. Suffolk County enacted a bill prohibiting employers and their agents from inquiring about job applicants’ wage or salary history during the hiring process. Next, we head to Oregon. Last month, the Oregon Bureau of Labor and Industries issued a Permanent Administrative Order for Oregon’s Equal Pay Act (OEPA), which are effective next month. The OEPA prohibits employers or prospective employers from seeking the salary history of an applicant or employee from the applicant or employee or a current or former employer of the applicant or employee. With all such ordinances and regulations, best to check the fine print to ensure compliance.
  • The Senate confirmed Kathy Kraninger to be the Director of the Bureau of Consumer Financial Protection. Kraninger will replace Acting Director Mick Mulvaney and will serve a five-year term.

If you have any questions or need assistance on any point raised in this Compliance News Flash please contact Montserrat Miller.

Montserrat C. Miller

She began her career as a trial attorney with the Immigration and Naturalization Service handling, among other cases, employer sanctions matters. Over the years Miller has worked in both private practice and on Capitol Hill as counsel to Senator Dianne Feinstein on the Senate Judiciary Committee. She is now a partner at Arnall Golden Gregory’s Privacy and Consumer Regulatory, Immigration and Global Migration, and Government and Regulatory practices. You can read more from her at her blog.