Man Denied Job Over 20-Year-Old Criminal Conviction, Wins Discrimination Lawsuit

A job applicant for a temporary staffing agency was denied a position over a record from the 1980's.  He filed a discrimination case against the temporary staffing agency and won. 

“Employment policies that impose a blanket exclusion on people with past convictions, without any consideration of the relationship of the conviction to the job in question, can constitute unlawful discrimination," Jennifer Clarke, executive director of the Public Interest Law Center of Philadelphia, said in a press release.

The nonprofit law center helped the man file the employment discrimination lawsuit, which explains why denying an applicant employment based on their criminal record violates the law:

"While such policies are facially neutral, they produce severe disparate impact on racial minorities, including African-American, Native Americans and Latinos, because of the significantly higher rates of criminal convictions experienced by these populations."

Recently Pepsi settled a similar case for $3.1 million dollars for using arrest records that kept approximately 300 people from getting a job.

"More companies are getting sued because of their inconsistent hiring policies, using arrest records, and using convictions that are not within the Federal or State guidelines or inconsistently applying the law", says Bill Whitford, CEO of S2Verify.  "Companies need to review their policy and framework around hiring to adjust to these actions and lawsuits"    

Pepsi Beverage Co. Pays $3.1 Million For Using Arrest Records

Pepsi Beverage Co was sued by the EEOC for using arrest records to disqualify approximately 300 applicants.    Recently the EEOC has held hearings on the use of arrest records and background checks to ensure they don't create a disparate impact for Black Americans and Hispanics.

"Companies absolutely need to review their Employment Screening Policies and also take note of using arrest records that do not have a conviction for employment decisions on an applicant."  said, Bill Whitford, CEO of S2Verify.    "As an industry, we are seeing more litigation around disparate impact and not following the FCRA (Fair Credit Reporting Act) and state laws and regulations.  It is critically important that your Employment Screening Vendor gives you all the facts and follows these rules to ensure 100% compliance."
 
"The FCRA and state laws limit the use of arrest records in making hiring decisions.   In addition, there are many state specific rules around what a CRA (Consumer Reporting Agency) can report to a client."  

"We see many new clients that still don't understand the limitations or complexity of following these rules and regulations.  There previous provider simply didn't keep them informed."

About S2VERIFY:
S2Verify is a leading process innovator in the application of background screening technologies to the needs of business and individuals for employee and tenant information that is comprehensive in scope, delivered quickly to key managers, and easy to read, understand and use by authorized personnel. With offices in Atlanta, Chicago and Miami the privately-held company specializes in providing a customizable yet fully integrated, best-in-class set of background screening services that address business and consumer needs either poorly met or not met at all by leading, nationally-branded providers of mass-market background screening solutions.

Employers Add 200,000 Jobs, Unemployment Lowest in Nearly 3 Years

A burst of hiring in December pushed the unemployment rate to its lowest level in nearly three years, giving the economy a boost at the end of 2011. The Labor Department said Friday that employers added a net 200,000 jobs last month and the unemployment rate fell to 8.5 percent, the lowest since February 2009. The rate has dropped for four straight months.The hiring gains cap a six-month stretch in which the economy generated 100,000 jobs or more in each month. That hasn’t happened since April 2006.

“There is no question that today’s employment report is a positive and there is also no question that the pace of job growth has accelerated of late,” said Dan Greenhaus, an analyst at BTIG LLC, a brokerage firm
A better job market is a positive sign for President Barack Obama, who is bound to face voters with the highest unemployment rate of any sitting president since World War II. Unemployment was 7.8 percent when Obama took office in January 2009.

Still, the level may matter less to his re-election chances if the rate continues to fall. History suggests that presidents’ re-election prospects hinge less on the unemployment rate itself than on the rate’s direction during the year or two before Election Day.

For all of 2011, the economy added 1.6 million jobs, better than the 940,000 added in 2010. The unemployment rate averaged 8.9 percent last year, down from 9.6 percent the previous year. Economists forecast that the job gains will top 2.1 million this year.

The December report painted a picture of a broadly improving job market. Average hourly pay rose, providing consumers with more income to spend. The average work week lengthened, a sign that business is picking up and companies may soon need more workers.

And hiring was strong across almost all major industries. Manufacturing added 23,000 jobs, as did the health care industry. Transportation and warehousing added 50,000 jobs. Retailers added 28,000 jobs. Even the beleaguered construction industry added 17,000 workers. More jobs and higher pay are crucial to helping the economy grow. They could enable shoppers to increase spending, which fuels 70 percent of economic activity.

The economy likely grew at an annual rate of above 3 percent, a healthy pace. Still, the job market has a long way to go to recover from the Great Recession. The nation has 6 million fewer jobs that it did in December 2007, when the recession began. In addition to the more than 13 million who were unemployed in December, a lot of people can’t find full-time work. And many who are unemployed have stopped looking for jobs. The government only counts people as unemployed if they are actively searching for jobs.
When including those groups, the broader “underemployment” rate was 15.2 percent. That’s down from 15.6 percent the previous month, but still high. The figure has dropped for three straight months.
A more robust hiring market coincides with other positive data that show the economy ended the year with some momentum.

Weekly applications for unemployment benefits have fallen to levels last seen more than three years ago. Holiday sales were solid. And November and December were the strongest months of 2011 for U.S. auto sales.

Many businesses say they are ready to step up hiring in early 2012 after seeing stronger consumer confidence and greater demand for their products.

Link to article: http://www.washingtonpost.com/business/economy/sixth-straight-month-of-solid-hiring-expected-when-government-reports-on-december-job-growth/2012/01/06/gIQAv7lMeP_story.html?wpisrc=al_comboNE_b

Many in U.S. Are Arrested by Age 23, Study Finds

By age 23, almost a third of Americans have been arrested for a crime, according to a new study that researchers say is a measure of growing exposure to the criminal justice system in everyday life.
The study, the first since the 1960s to look at the arrest histories of a national sample of adolescents and young adults over time, found that 30.2 percent of the 23-year-olds who participated reported having been arrested for an offense other than a minor traffic violation.

That figure is significantly higher than the 22 percent found in a 1965 study that examined the same issue using different methods. The increase may be a reflection of the justice system becoming more punitive and more aggressive in its reach during the last half-century, the researchers said. Arrests for drug-related offenses, for example, have become far more common, as have zero-tolerance policies in schools.

The study did not look at racial or regional differences, but other research has found higher arrest rates for black men and for youths living in poor urban areas. Criminal justice experts said the 30.2 percent figure was especially notable at a time when employers, aided by the Internet, routinely conduct criminal background checks on job candidates.

“This estimate provides a real sense that the proportion of people who have criminal history records is sizable and perhaps much larger than most people would expect,” said Shawn Bushway, a criminologist at the State University at Albany and a co-author of the study, which appears in Monday’s issue of the journal Pediatrics.

The study analyzed data collected as part of the federal government’s National Longitudinal Survey of Youth. The 7,335 participants were nationally representative and ranged in age from 12 to 16 when they were enrolled in the survey in 1996. The first interviews were conducted in 1997. Follow-up interviews have been carried out annually since then. The researchers found that the probability of a first arrest accelerated in late adolescence and early adulthood — at 18, 15.9 percent of the participants reported having been arrested — and then began to flatten out as the youths entered their 20s.

Robert Brame, a professor of criminal justice and criminology at the University of North Carolina, Charlotte, and the lead author of the study, said he hoped the research would alert physicians to signs that their young patients were at risk.

“We know that arrest occurs in a context,” Dr. Brame said. “There are other things going on in people’s lives at the time they get arrested, and those things aren’t necessarily good.”


If doctors can intervene, he added, “It can have big implications for what happens to these kids after the arrest, whether they become embedded in the criminal justice system or whether they shrug it off and move on.”      

New Class Action Lawsuit against Major Financial Institution for FCRA Violations

A class action case filed against a large financial institution – one of the nation’s top 10 banks – shows once again that legal compliance is a critical part of any background screening program.  The lawsuit was filed on behalf of an employee alleging violations of the federal Fair Credit Reporting Act (FCRA). According to a press release from the Attorneys for the Plaintiff, the lawsuit alleges that the financial institution obtained background checks in violation of the FCRA and failed to provide required notices.  The Plaintiff seeks to represent a class of all of the financial institution’s employees and job applicants for the past three years.

The lawsuit – filed in the United States District Court for the District of Maryland – alleges the financial institution violated the FCRA in two ways:

• First, the lawsuit alleges that the financial institution’s authorization form is flawed. The law imposes strict formatting requirements on companies who do background checks. The Plaintiff alleges that by burying its background check authorization in a job application, including extraneous information, the financial institution violated the FCRA. The FCRA requires that a consumer receive a “clear and conspicuous” disclosure in a document that consists solely of the disclosure that a background report may be obtained for employment purposes. 
• Second, the lawsuit also alleges that the financial institution failed to provide copies of the background reports when it used them to take adverse employment actions, such as refusing to hire an applicant, refusing to promote an employee, or terminating an employee. The FCRA requires employers to provide consumers with copies of their background checks if the employer intends to take adverse action that is based in any part on the background check report, along with a statement of rights prepared by the Federal Trade Commission (FTC), so consumers have an opportunity to contest any information they feel is inaccurate or incomplete.  If the employer proceeds to take adverse action, a second post-adverse action notice is required.

Based on the Attorneys for the Plaintiff’s understanding of the financial institution’s practices, everyone who has applied or worked for the financial institution in the past three years should be eligible to receive statutory damages if the lawsuit succeeds. Additional information about the case can be found at www.nka.com/case/capital-one-fair-credit-reporting-act/

The lawsuit demonstrates that violations of the FCRA can create large potential liability.  Potential class members, including employees and prospective employees, may be entitled to statutory damages of up to $1,000 for each violation in the case of willful non-compliance. Class action lawsuits also create exposure for large awards of attorneys fees and the potential exposure to punitive damages.  A United States Supreme Court case decided in June 2007, Safeco Ins. Co. v. Burr, substantially increased the risk of punitive damages under the FCRA by ruling that a reckless disregard of the FCRA could be sufficient to show “willful” non-compliance.

Social Network Service Facebook Settles FTC Charges over Privacy Practices

According to a news release on the Federal Trade Commission (FTC) website, social network service Facebook has agreed to settle FTC charges of failing to keep promises of privacy after the company “deceived consumers by telling them they could keep their information on Facebook private and then repeatedly allowing it to be shared and made public.” The FTC’s eight-count complaint against Facebook – part of the agency’s ongoing effort to ensure companies live up to the privacy promises they make to American consumers – charged that the claims that Facebook made “were unfair and deceptive and thus violated federal law.”

The FTC complaint against Facebook – available at http://www.ftc.gov/os/caselist/0923184/111129facebookcmpt.pdf – listed a number of instances in which Facebook allegedly made promises that it did not keep:

• Facebook changed its website in December 2009 without warning users or getting their approval in advance so information some users designated as private – such as their Friends List – was made public.
• Facebook represented that third-party applications (“apps”) installed by users would only have access to user information they needed to operate when, in fact, the apps could access nearly all of the personal data of users.
• Facebook told users they could restrict sharing of data to limited audiences such as “Friends Only” when, in fact, selecting “Friends Only” did not prevent information from being shared with third-party apps used by friends.
• Facebook claimed its “Verified Apps” program certified the security of participating apps when it did not.
• Facebook promised users that it would not share their personal information with advertisers but it did.
• Facebook claimed that photos and videos of users who deactivated or deleted their accounts would be inaccessible but they remained accessible.
• Facebook claimed it complied with the United States – European Union (EU) Safe Harbor Framework that governs data transfer between the U.S. and EU but it did not.

As part of the proposed settlement, Facebook – the world’s largest online community with an estimated 800 million active users worldwide –  is required to take several steps to make sure the company keeps the privacy promises it makes to hundreds of millions of users in the future, including giving users clear and prominent notice and obtaining the express consent of users before their information is shared beyond the privacy settings they have established. More specifically, under the proposed settlement, Facebook is:

• Barred from making misrepresentations about the privacy or security of the personal information of consumers;
• Required to prevent anyone from accessing a user’s material more than thirty (30) days after the user has deleted his or her account;
• Required to establish and maintain a comprehensive privacy program designed to address privacy risks and to protect the privacy and confidentiality of consumers’ information; and
• Required to obtain periodic assessments of its privacy practices by independent, third-party auditors for the next 20 years to ensure that the privacy of consumers’ information is protected.

The Federal Trade Commission – the federal agency that works for consumers to prevent fraudulent, deceptive, and unfair business practices and to provide information to help spot, stop, and avoid them – will monitor compliance with its order under standard record keeping provisions contained in the proposed order.

In a November 29, 2011 post on The Facebook Blog, Facebook’s founder and CEO Mark Zuckerberg wrote that while overall the company had “a good history of providing transparency and control over who can see your information” he admitted that “a small number of high profile mistakes” such as “poor execution as we transitioned our privacy model two years ago” may have overshadowed much of the social network’s good work. He also wrote in depth about the issues concerning the privacy of personal information online:

I also understand that many people are just naturally skeptical of what it means for hundreds of millions of people to share so much personal information online, especially using any one service.  Even if our record on privacy were perfect, I think many people would still rightfully question how their information was protected. It’s important for people to think about this, and not one day goes by when I don’t think about what it means for us to be the stewards of this community and their trust.
Facebook has always been committed to being transparent about the information you have stored with us – and we have led the internet in building tools to give people the ability to see and control what they share. 

But we can also always do better. I’m committed to making Facebook the leader in transparency and control around privacy.

As we have grown, we have tried our best to listen closely to the people who use Facebook. We also work with regulators, advocates and experts to inform our privacy practices and policies. Recently, the US Federal Trade Commission established agreements with Google and Twitter that are helping to shape new privacy standards for our industry. Today, the FTC announced a similar agreement with Facebook. These agreements create a framework for how companies should approach privacy in the United States and around the world.

Later on in his post, Zuckerberg addressed specific FTC charges relating to Facebook:

Even before the agreement announced by the FTC today, Facebook had already proactively addressed many of the concerns the FTC raised. For example, their complaint to us mentioned our Verified Apps Program, which we canceled almost two years ago in December 2009. The same complaint also mentions cases where advertisers inadvertently received the ID numbers of some users in referrer URLs. We fixed that problem over a year ago in May 2010.

In addition to these product changes, the FTC also recommended improvements to our internal processes. We’ve embraced these ideas, too, by agreeing to improve and formalize the way we do privacy review as part of our ongoing product development process. As part of this, we will establish a biannual independent audit of our privacy practices to ensure we’re living up to the commitments we make.


Regarding the settlement with the FTC, Zuckerberg wrote that he looked forward “to working with the Commission as we implement this agreement” which he hoped would make clear that “Facebook is the leader when it comes to offering people control over the information they share online.” The post is available at https://blog.facebook.com/blog.php?post=10150378701937131.

Employers Must Begin Using Standard Form I-9 in Commonwealth of the Northern Mariana Islands

Beginning on November 28, 2011, employers hiring individuals for employment in the Commonwealth of the Northern Mariana Islands (CNMI) must begin using the standard ‘Form I-9, Employment Eligibility Verification’ for all new hires and reverifications in the CNMI, according to a page titled “Form I-9 Guidance for Employers Hiring Individuals in the Commonwealth of the Northern Mariana Islands” on the U.S. Citizenship and Immigration Services (USCIS) web site.

According to the USCIS web site:

On Nov. 28, 2009, the Immigration and Nationality Act (INA) and other Federal immigration laws took effect in the Commonwealth of the Northern Mariana Islands (CNMI), as provided by the Consolidated Natural Resources Act of 2008.  As a result, since Nov. 28, 2009, CNMI employers have been required to verify the identity and employment authorization of their new hires as required under U.S. law.  Employers in the CNMI are subject to the same civil fines and criminal penalties for Form I-9 violations as U.S. employers.

From Nov. 28, 2009 until Nov. 27, 2011, employers used Form I-9 CNMI rather than the standard Form I-9 to verify the identity and employment authorization of their new hires.  Form I-9 CNMI is the same as the standard Form I-9, with one exception:  Form I-9 CNMI contains additional List A documents issued by the CNMI government that are not acceptable on the standard Form I-9.  These additional documents are only acceptable until Nov. 27, 2011. 

By Nov. 28, 2011, all workers who previously held CNMI-issued employment authorization must have another basis of work authorization under U.S. law, or have a petition pending for CNMI-only transitional worker status as described below, to continue working in the CNMI. 

Employers hiring individuals for employment in the CNMI may only use Form I-9 CNMI until Nov. 27, 2011.  Beginning on Nov. 28, 2011, employers must use the standard Form I-9 for all new hires and reverifications in the CNMI.


The U.S. Citizenship and Immigration Services (USCIS) is the government agency that oversees lawful immigration to the United States. The Commonwealth of the Northern Mariana Islands (CNMI) occupies the western Pacific Ocean and is in political union with the United States. Under the union, in general, U.S. federal law applies to CNMI.