Today’s Wall Street Journal has an interesting article about “online sleuthing” and privacy concerns. Employers use social media when screening candidates for employment and it’s no surprise that police and prosecutors use it as well to tell them something about someone, locate an individual or otherwise track them. Sometimes, law enforcement use social media by “impersonating users or setting up fictitious accounts to gather intelligence or evidence for trials” according to the article. In a survey cited in the article, “…about 500 local, state and federal law enforcement officers commissioned last year by database provider LexisNexis,Corp. 81% said they actively used social media in investigations. Asked whether creating fake online personas or profiles was ethical, about 80% agreed that it was, 11% were neutral, and 9% disagreed.”
Using this as background, let’s consider the use of social media for employment screening. There are permissible ways an employer can use social media in this context and impermissible ways to use social media. There are background screening companies who operate under the Fair Credit Reporting Act (FCRA) and lawfully provide such information, but the concern comes when employers and/or individuals conduct their own, informal checks on social media when considering an applicant or employee.
In the employment context, an employer likely blurs the line when they do the screening in-house and consider information or factors about an individual that may lead to a discriminatory employment practice. Say an employer searches social media to learn more about a candidate and learns they are an African American woman and factors that into their hiring decision or decision not to call the candidate in for an interview. That could be a violation of Title VII of the Civil Rights Act as an unlawful employment practice. In fact, the EEOC has addressed the use of social media. This quote sums it up: ”… in response to a letter from Senators Charles Schumer and Richard Blumenthal, the EEOC reiterated its long-standing position that personal information-such as that gleaned from social media postings-may not be used to make employment decisions on prohibited bases, such as race, gender, national origin, color, religion, age, disability or genetic information. Quoting from a 2010 informal discussion letter from the EEOC, Miaskoff noted that ‘the EEO laws do not expressly permit or prohibit use of specified technologies. . . . The key question . . . is how the selection tools are used.’” Read more on the EEOC here.
If you want to use social media for employment screening purposes consider these factors:
- Hire a reputable background screening company operating under the FCRA.
- Set parameters around what you would like reported. Typically these types of background checks will be limited to user generated content which exhibits violent or sexually explicit activity, hate speech or potential illegal activity such as drug use. They can also report positive information such as charitable or volunteer participation, educational recognition and achievements and so on.
- It is important that the content being reviewed and considered is user generated and not third party commentary, as the latter cannot be verified.
- Don’t ask an employee or job candidate for their password so you can look at their social media account. In a handful of states that is illegal.
Bottom line, an employer can use social media to screen candidates. However, be aware of restrictions around its use and use a reputable background screening company for this purpose, one which provides these reports under the FCRA.
As the President’s executive action on immigration rolls out, employers are wondering when they will start to see work permits issued to those covered by the President’s actions. The short answer is: earliest would be springtime and more likely summer. Two elements of the executive action on immigration are, an expansion of the Deferred Action for Childhood Arrivals (DACA) program and creation of a new program for undocumented immigrants in which they will also receive a work permit. The latter being Deferred Action for Parental Accountability (DAPA), which is for those individuals living in the United States, without legal immigration status, who have been here at least five years and have a U.S. citizen or lawful permanent resident child. There are more requirements than that, but that’s the gist of DAPA.
Individuals who qualify for DACA and DAPA will be issued a work permit, valid for three years. Which means, potentially, up to 5 million individuals who will now be able to lawfully work in the United States. For more on the President’s executive action on immigration click here. For individuals wanting to know more about this administrative relief and legal assistance, check this website out.
But wait! Up on Capitol Hill they don’t like what the President is doing because any changes to immigration laws fall in their bailiwick. Never mind they have had years to address immigration reform but can’t pass a comprehensive measure. Notwithstanding, you need to pay attention to what is happening in Congress and the impact it could have on the President’s executive action on immigration.
This week the House of Representative’s voted 236-191 to pass H.R. 240, the Department of Homeland Security (DHS) appropriations bill. Note that this is a must pass bill as funding for DHS expires February 27th.
The House made in order five amendments that defund the President’s executive actions on immigration. The House passed (237-190) the Aderholt/Mulvaney/Barletta amendment, which would prevent any funds appropriated by H.R. 240 from being “used to implement, administer, enforce, or carry out (including through the issuance of any regulations) any of the policy changes set forth in” memoranda underlying and detailing the President’s executive action on immigration, or any future “substantially similar policy changes.” The House also passed (218-209) the Blackburn amendment to prohibit funding from H.R. 240 for granting deportation relief to new, renewing, or previously denied applicants under DACA. Democrats offered a motion, which was defeated, to send H.R. 240 back to committee to remove the immigration-related provisions and to add $300 million for fusion centers that coordinate local, state, and federal threat information. Sen. John Thune (R-SD), leader of the Senate Republican Caucus, called the bill “the beginning of the process” for the Senate. Some suggest that the Senate will not consider the bill much until February, focusing instead on the Keystone XL pipeline for much of the rest of January. Thune added that the Senate amendment process will be “an effort to try and find six Dems to get to 60 [votes] on something that we could send back to the House that they would be able to take up and pass.” Democrats want a “clean” bill that would avoid a lapse in DHS appropriations without immigration-related amendments. CQ reports that Speaker Boehner (R-OH) has not ruled out such a possibility, saying his primary interest is to fund DHS and his secondary interest is in preventing the president’s “executive overreach.” House Judiciary Committee Chairman Robert Goodlatte (R-VA) announced his agenda today, saying his primary interest on immigration is to prevent the president from implementing his executive action on immigration.
I have previously written about this (click here), but it is worth mentioning again. If you have been using E-Verify for more than 10 years, read on. On January 1, 2015, E-Verify will delete transaction records older than 10 years. Which means employers who use E-Verify must download case data created on or before December 31, 2004 in the new “Historic Records Report” or it will be gone…forever. The information you will be saving in an excel worksheet will include employee name and E-Verify confirmation number. Important stuff.
See the Fact Sheet and Instructions for downloading the report.
Reports must be downloaded by December 31, 2014.
Happy New Years!
What do these have in common? The fact that a federal district court judge believes that a plain reading of the Fair Credit Reporting Act (FCRA) requires background screeners obtain from an employer a certification that the person “has complied” with section 604(b)(1) each and every time before providing a background report. Meaning no use of one-time prospective blanket certifications. In the judge’s Memorandum and Order RE: Motion to Dismiss, he grants the employer’s motion to dismiss on the FCRA disclosure and authorization allegation, but does not agree to the same with respect to the background screening company and the 604(b)(1) allegation.
With respect to the allegation against the background screening company, the plaintiff argues that there is a violation of the FCRA because a consumer report was provided by the screener “without first obtaining a certification from M-I stating that M-I ‘has complied’ with its statutory obligations ‘with respect to the consumer report’” pursuant to 604(b)(1). The judge agrees that in fact this could be the case and that there is no FTC guidance or case law which would allow for a background screener to rely on a one-time prospective blanket certification from employers prior to providing a consumer report under section 604(b)(1).
This is a case to follow if you are a background screening company conducting employment related background checks. The case number is 1:14-cv-00742 and the plaintiff is Sarmad Syed. It is pending in the U.S. District Court, Eastern District of California.
If you have any questions about your current practice, please do not hesitate to contact me and the Privacy & Consumer Regulatory practice group at Arnall Golden Gregory LLP.
I will be presenting with Equifax Workforce Solutions on this free webinar to help employers understand the President’s executive action on immigration and what it means for employers, including what it means for the Form I-9 and E-Verify.
Please click here to learn more and register.
The webinar is December 16th from 1 – 2 pm EST.
I hope you can join me.
Last night President Obama announced the following regarding executive action on immigration:
- Undocumented immigrants who have been in the United States for more than 5 years, have a U.S. citizen or permanent resident child, pass a background check and pay their taxes will be eligible for relief from deportation;
- Steps will be taken to increase resources at the border; and
- Steps will also be taken to assist high-skilled workers, international graduates and those seeking to invest in the United States. In a memo issued yesterday, USCIS Director Rodriguez discussed potential policies supporting U.S. High Skilled Businesses and Workers, including new policies and regulations tied to employment-based immigrant visas, reforming Optional Practical Training for international students, promoting research and development in the United States, greater transparency around the L-1B nonimmigrant visa program and increasing worker portability.
The first bullet point alone could affect approximately 4 million undocumented immigrants. To be clear, this temporary relief is directed to parents and family unity as it requires an undocumented immigrant to meet time and familial relationship requirements in order to qualify. If they register with the Department of Homeland Security and are found to be eligible, they will be eligible for a work permit and can then apply for a Social Security number and driver’s license.
For employers, this means that individuals who register and are granted a work permit will have greater mobilitiy in their employment choices since they will no longer be concerned about staying under the radar. It also means that employers may face situations where employees come forward with valid documentation to correct previously presented fraudulent documents for purposes of the Form I-9 and/or they come forward and present new documents and a new identity. Prior to taking action in these situations you should consult immigration counsel to address Form I-9 and E-Verify issues. We are happy to assist here at Arnall Golden Gregory LLP.
For more on the President’s announcement, click here.
Tonight President Obama will address the nation at 8 pm EST on his executive authority on immigration. The major networks (NBC, ABC, and CBS) are not planning to air the President’s speech this evening. CNBC reports, “Obama’s speech comes during sweeps week, where networks need to highlight their most popular programming.”
The President is expected to lay out the action he believes he has the authority to take with regard to individuals unlawfully present in the United States as well as to address issues around high skilled workers, border security and possibly other areas. The President will likely talk about his “prosecutorial discretion” allowing him to defer the deportation of up to 5 million undocumented individuals. To be clear, this is not a substitute for comprehensive immigration reform, and the President has made that clear.
Yesterday the President spoke from the Oval office about tonight’s announcement. Listen here.
Tune in for more on this after the President’s announcement tonight.
Employers often use notaries to complete the Form I-9 for their remote employees. Notaries, when doing so, act in their capacity as an agent or representative of the company and not in their capacity as a notary public. For employers with remote hires, this is helpful as the law requires that an employer (or their agent or representative) must visually inspect the document or documents presented to complete Section 2 of the Form I-9 to confirm that the documents relate to the employee completing the form and appear genuine. The federal agency responsible for the Form I-9, U.S. Citizenship and Immigration Services (USCIS), states that it is acceptable to use a notary in this capacity. But enter California.
In California, notaries are not qualified to complete a Form I-9, even in a non-notarial capacity, unless they are qualified and bonded as immigration consultants under state law. An immigration consultant in California must be bonded and pass a background check.
According to the National Notary Association (NNA), “In August 2014, the California Secretary of State’s Notary Public & Special Filings Section clarified with the NNA that California Notaries who are not qualified and bonded as immigration consultants under the Business and Professions Code Sections 22440-22449, may not complete or make the certification on Form I-9, even in a non-notarial capacity. The Secretary’s office considers Form I-9 to be an immigration form. Any California Notary who is not an immigration consultant violates Government Code Section 8223(c).”
Background screeners and users of background check reports provided by a background screening company (defined as a consumer reporting agency under the Fair Credit Reporting Act (FCRA)) — the wait is over! The Consumer Financial Protection Bureau (CFPB) has finally posted on its website a full and intact version of A Summary of Your Rights Under the Fair Credit Reporting Act, in English and Spanish, as required under section 609(c)(1) of the FCRA. For those of you who previously searched for this document on the CFPB’s website, you will recall that it was about as easy to find as a pot of gold at the end of a rainbow.
The Summary is a critical document which must be provided to, for instance, job applicants during the adverse action process — see FCRA § 604(b)(3)(A)(ii).
Whether you are a user of background check reports or the provider of background check reports, if you operate under the FCRA this is a required document under sections 604 and 606 of the FCRA. The failure to provide this summary is the subject of litigation, particularly under section 604 which relates to pre-adverse action tied to employment (read prior posts on this).
If you are an employer who has been using E-Verify for more than 10 years, you should download the new “Historic Records Report” before the end of the year. Why? Because effective January 1, 2015, E-Verify transaction records more than 10 years old will be deleted from the system. Meaning, you will no longer have access in E-Verify to cases you created prior to December 31, 2004. E-Verify is taking this action to comply with the National Archives and Records Administration’s retention and disposal schedule.
The deadline to print this report is December 31st. For more information see the Fact Sheet and Instructions provided by the Department of Homeland Security.