Employers are erring on the side of caution in the hiring process to avoid paying big bucks for non-compliance of the Fair Credit Reporting Act (FCRA).  A recent SHRM publication revealed that some businesses have already been forced into million dollar settlements because they weren’t compliant with FCRA.  This year alone nearly 30 employers nationwide have faced class action lawsuits of noncompliance with FCRA regulations relating to consumer reports.

The two most common areas where employers are failing to become compliant are (1) in their background check disclosures and (2) in the adverse action process.

What is a Consumer Report?

By definition, a consumer report is a report prepared by a consumer reporting agency (CRA) consisting of information pertaining to an applicant or employee’s credit standing, character, general reputation, personal characteristics or mode of living that is used or collected for employment purposes.  Similarly, an investigative consumer report is a type of consumer report wherein information of the same nature is gathered through personal interviews of others (i.e. reference checks).  A consumer report can be obtained either pre-hire or post-hire.

Consideration of a Consumer Report:

Prior to obtaining a consumer report, an employer is required to submit to an applicant a written disclosure that a consumer report may be obtained and may be used for decisions relating to employment.  An applicant has to provide written permission for the employer and the CRA to obtain a consumer report.  The disclosure must state an applicant’s right to request information regarding the consumer report’s nature and scope.

What is Adverse Action?

Adverse Action is when an employer has decided not to hire a candidate based partly on information that was revealed in a consumer report (aka Background Check).  In these cases, there is a specific course of action you must take.

Consideration of an Adverse Action:

The employer must first give the candidate a Pre-Adverse Action Letter, which must include a copy of the consumer report and a copy of the federal and state summary of rights.  After five days, the employer must follow-up with a final Adverse Action Notice, which needs to include the following:

- The name and contact information of the consumer reporting agency (CRA) that compiled the consumer report.

- A statement that the CRA provided information only and did not make the adverse hiring decision and or influence the adverse decision.

- A statement indicating the applicant has the right to obtain a free copy of the consumer report from the CRA within 60 days.

- A statement that the applicant has the right to directly dispute any information in the consumer report they find to be inaccurate or incomplete, with instructions for how to dispute with the CRA.

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There is an ongoing movement to broaden the definition of “Ban the Box” to include extending a conditional offer of employment prior to background checking. NELP (the National Employment Law Project) has published a Resource Guide dated April 2014 that describes which municipalities and cities are adapting regulation that requires a conditional offer. This is for both public and private employers. See this link for your state: http://www.nelp.org/page/-/SCLP/Ban-the-Box.Current.pdf?nocdn=1

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Social media and criminal background check restrictions are trends that will impact pre-employment in the New Year. While they are great tools to use in the hiring process, it is crucial to abide by regulations and protect your company from a potential discrimination charge.

Social Media

What started in 2012 gathered momentum in 2013, with over 35 states having legislation introduced or pending which prohibited employers from requesting an applicant or employee’s social media log in information.  When the House of Representatives introduced the Social Networking Online Protection Act (SNOPA H.R. 5050), it was returned back to the committee.  However, due to states making their own legislation, it is unknown if there will be another federal legislation attempt.

Viewing an applicant’s profile can bring trouble; a candidate’s profile may show personal information that would be unlawful to ask about in an interview situation (political affiliation, sexual orientation, illnesses, etc.). Just by knowing the answers to prohibited job interview questions, the employer has already crossed the line, and deciding not to hire the candidate based on that knowledge can result in a lawsuit. To reduce the possibility of a discrimination charge, employers should use a third party to review social media sites to filter out any information about membership in a protected class and to disclose only information that can be considered lawful.

Criminal Checks

Criminal background checks have faced increased scrutiny over the past year with over 50 local governments and nine states taking steps to decrease discrimination on past criminal history.  The Ban the Box campaign along with the Equal Employment Opportunities Commission (EEOC) asks employers to 1. Consider only convictions directly related to job responsibilities; and 2. Conduct an individualized assessment of the circumstances of any conviction and whether an applicant is likely to commit the same crime again.

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It’s been a year since the asset search on your debtor came up with nothing. Here are tips to make your New Year’s judgment resolution come true.

As a creditor, you have a permissible purpose to pull your debtor’s credit report. A review of a debtor’s credit report can give insight into new revolving credits or other debts.

Periodical income searches increases the likelihood of recovering judgments. People need to be able to support themselves, regardless of being a debtor, there is only so long the typical person can go unemployed and without a paper trail. Generally, people have the tendency to become sloppy over time; they will eventually stop covering their trail of finances meticulously, leaving room for error.

Set up Google Alerts for the debtor and their parents (or other family members). Look out for obituaries or any coverage suggesting an inheritance or a life insurance policy may be coming their way.

Depending on the state, judgments are valid for 5-20 years, and unpaid judgments can be renewed. In Arizona, judgments are valid for five years from the date of its entry. Every five years a judgment may be renewed by instituting an action on it. Judgment can also be renewed for an additional five years by filing an affidavit for renewal, which must be filed 90 days before the expiration of the judgment or prior renewal.

Dormant or lapsed judgments may be revived in some states. There may be a time limit to revive a dormant judgment. For example, in Ohio, the creditor has 10 years to revive the judgment from the date it went dormant.

Persistence is key when recovering judgments. Always renew your unpaid judgments and do not get discouraged. Many of our clients have recovered funds the second time around.

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The holiday season is a time of happiness, being thankful and spending time with loved ones. Between preparing for special days, wrapping up the year-end at work and celebrating, there are a lot of distractions.  Unfortunately there are people out there that look to exploit holiday vulnerabilities; don’t let these scams put a damper on your plans.

When anticipating deliveries, beware of calls asking about the contents of your package and if you are home for delivery.  Scammers call and pretend to be from UPS and use the information people give them to steal packages and break into homes.  If you receive a suspicious phone call, first call the police and give them as much information as you can (telephone number, male or female voice, questions asked, etc.), and then call 1-800-PICK-UPS to report the issue to customer service, who then notifies UPS Security.  While this scam is widespread during the holiday season due to the heavy volume of packages, it is important to always remember UPS will never contact you without a tracking number and will never about the content of your package.

Theft is prevalent during the busiest shopping time of the year, and with 2013 online holiday shopping expected to hit $82 billion it is inevitable thieves will be online in full force.  Many people think credit and debit cards are interchangeable and both offer the same level of protection, but that is not the case.  Only credit cards are protected under the Fair Credit Billing Act, your ultimate liability for fraudulent use of a credit card is $50, where as with fraudulent use of a debit card, the liability can be $500 or up to all of the money in the ATM/debit card account.  The Federal Trade Commission has more information about fraudulent transactions and liability.

Be suspicious of the free giveaways for “liking” something on Facebook or on other social media platforms.  Some “giveaways” trick people into unknowingly signing up for paid text message schemes while others trick people into doing surveys in which the scammers profit.  Before you “like” any giveaway campaign on social media, always check the company’s official profiles and website.  If there is no sign of the campaign from an official source, chances are it is a scam.  Softpedia is another valuable resource, they have a list of Facebook scams complete with descriptions so you can know the truth behind the lies.

Fake charities pop up rampantly during vulnerable times such as after natural disasters and during the holidays.  Make sure you do your research before giving away your hard earned money.  Just because a charity has a noble name and message does not mean your donation is going to the needy.   Run the charity’s name through Guidestar, Charity Navigator or Better Business Bureau Wise Giving Alliance to get more information. To make sure an organization has a tax-exempt status under section 501(c)(3) of the Internal Revenue Code use the Exempt Organizations Select Check. If you believe you are a victim of a charity fraud or if you were contacted by a suspicious organization contact your states Attorney General’s Office and your banking institution right away.

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Since November 1, 2013, private employers in Seattle have restricted use of arrest and conviction records in the hiring process. Ban the box seeks to “increase public safety and job assistance through reducing criminal recidivism and enhancing positive reentries to society by prohibiting certain adverse employment actions against individuals who have been arrested, convicted or charged with a crime; and adding Chapter 12.17 to the Seattle Municipal Code.” Employers must now wait until after the initial screening of applications to eliminate unqualified applicants before they can perform a criminal background check or require an applicant to provide criminal history information.

Employers are now prohibited from:
•Advertising, publicizing or implementing any policy or practice that automatically or categorically excludes all individual with any arrest or conviction record from any employment position that will be performed in whole or in substantial part (at least 50% of the time) within the City
•Carrying out a tangible adverse employment action solely based on an employee’s or applicant’s arrest record
•Carrying out a tangible adverse employment action solely based on the conduct relating to an arrest unless the employer has a legitimate business reason for taking such action
•Carrying out a tangible adverse employment action solely based on an employee’s or applicant’s criminal conviction record or pending criminal charge, unless the employer has a legitimate business reason for taking such action

Employers are now required to:
•Identify to the applicant or employee the record(s) or information on which they are relying and give the applicant or employee a reasonable opportunity to explain or correct that information before taking any tangible adverse employment action solely based on an applicant’s or employee’s criminal conviction record, the conduct relating to an arrest record, or pending criminal charge
•Hold open a position for a minimum of two business days after notifying an applicant or employee that they will be making an adverse employment decision solely based on their criminal conviction record, the conduct relating to an arrest record, or pending charge in order to provide an applicant or employee a reasonable opportunity to respond, correct or explain that information. After two business days, employers may, but are not required, to hold open a position until a pending charge is resolved or adjudicated or questions about an applicant’s criminal conviction history or conduct relating to an arrest are resolved.

For more information please click here
To read the Ordinance please click here

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Internet security firm Bitdefender’s Clueful web app is a great tool for finding out how apps use data and treat your privacy in a very easy to use format.  The app allows you to search for free iOS apps and lists the Top Free Apps, Top Offenders and Just Analyzed apps.  Clueful gets privacy details from the Bitdefender cloud and the database is constantly increasing with thousands of apps added every day.  Users have the ability to ‘Suggest an app’ for analysis through a link on the page and can rate apps and leave comments.

Clueful’s clues lets you find out:
Which apps access or even upload your own address book contacts to their cloud
Which apps can learn your real identity
Which apps might be carelessly sending your passwords over the internet and putting your accounts at risk
Which apps use and upload your UDID (Unique Device ID) to analyze what you do
Which apps can read your personal or business calendars
Which apps gather analytics in order to monitor you
Which apps can track your location
Which apps display ads
Which apps drain your battery through their improper use of background services, such as GPS or audio services

The top offender with the most clues is Countdown!! (with Facebook Event Countdowns) by Sevenlogics, Inc.  The app is a countdown to special days, i.e. birthdays, vacations.

Clueful shows that the app:
Encrypts stored data
Can display ads
May drain battery tracking location
Can change your calendar
Uploads your UDID (Sends your phone’s Unique Device ID to a remote server and was not encrypted)
Could track your location
Connects to Twitter (So you can share content with your friends or can be logged in to app services using Twitter credentials)
Tracks usage (Medialets analytics), ads
Tracks usage (Furry Analytics- used to display ads and gather data about your behavior like: the app in use, unique iPhone identifier, locale, city, gender and birth month), ads
Tracks usage (Google Analytics)
Can read your address book
Connects to Facebook
Uses your iPhone’s unique ID

Interestingly, NBC’s app was also a top offender, with seven clues.
Uses your iPhone’s unique ID
Connects to Facebook
May drain battery tracking location
Sends unencrypted username
Encrypts stored data
Uploads your UDID
Can track your location

For the Android market, Bitdefender has a Clueful Beta app.

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If you would not download just anything off the internet, why would you download apps to your phone without doing any due diligence? It is important to use the same caution when downloading mobile apps as you would with clicking on unknown email or internet files.

Downloading a file or program from a known company’s website is generally safer than a random unknown site.  However when it comes to apps and mobile privacy that is not always the case.  You should exhibit the same caution to protect your privacy regardless of the apps’ popularity or size of the brand.

Delta Airlines, Inc. was sued in December 2012 for not complying with California’s law requiring privacy notices in all apps.  Despite receiving a warning letter with a 30-day cure period, Delta did not take action which resulted in the California Attorney General Kamala Harris filing suit.

Delta’s mobile app called “Fly Delta” reportedly collected the person’s name, phone number, birth date, email address, frequent flyer number and pin code, billing information, photo and geo-location data allegedly without the customer knowing how the data is collected or used by Delta.

The suit against Delta (People v. Delta Air Lines Inc., in California Superior Court, San Francisco, 12-526741) is the first under the 2004 law, California’s Online Privacy Protection Act which requires companies to release a privacy policy and give users the opportunity to read their policy prior to downloading an app that collects personal information from users.  Delta could potentially face fines up to $2,500 for each time the app was downloaded.

Delta is not the only large company whose app has gotten attention for privacy concerns, researchers at the Carnegie Mellon University Human-Computer Interaction Institute studied the data gathered by the top 100 most popular apps in Google’s Android App Store.  Over half (56 out of 100) of the apps collected location information, device identifiers and / or contact lists, without users knowing their data was taken or how it may be used.

The top 10 worst offenders for privacy and transparency are (in no ranking order):

Angry Birds game (device ID, location)
Backgrounds HD Wallpapers (device ID, contacts)
Brightest Flashlight (device ID, location)
Dictionary.com (device ID, location)
Horoscope (device ID, location)
Mouse Trap game (device ID)
Pandora Internet Radio (device ID, contacts)
Shazam music (device ID, location)
Talking Tom virtual pet (device ID)
Toss It game (device ID, location)

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Do you want to read every text message, listen in on every phone call, see every video and picture on someone’s phone without them having a clue? There’s an app for that!
Are you interested in stalking someone? There’s an app for that!
Do you like to watch unsuspecting people around the world? There’s an app for that too!

There truly is an app for everything and here is our list of the creepiest and most intrusive apps.

Stealth Genie
The cell phone spy app is undetectable for iPhones, Android and Blackberry devices for “parental controls,” however it can be downloaded by anyone to spy on any phone. There are packages according to price and level of spying and all packages come with the ability to read all SMS incoming and outgoing messages, call history, all contacts, view browsing history, real time location tracking and location history of the phone. Upgraded plans include the basic plan options as well as allowing the user to record a phone’s surroundings up to 15 feet, access emails, view pictures and videos, back up and delete all data, installed app logs, iMessage chats/ Blackberry Messenger/ WhatsApp chats.  On Android phones the platinum plan allows the user to record phone calls.

Creepy
Desktop geo-location application enables the user to search for someone by their screen name (Flickr and Twitter) and will produce a map listing the history and location of their posts.  The app shows a map with pins of each location, the longitude and latitude as well as time of post.  It will only work if the person you are searching for has enabled location features.

PlaceMe
App keeps track of every location you have visited and there is no need to check in because it is always on.  Everything is automatic however it gives you the option to add notes to the places and it requires GPS data and Wi-Fi. According to the developers, Alohar Mobile, Inc., the information is private and SSL encrypted, but since it lists every location you have been to with your phone, if someone were to get their hands on the information it would be a huge breach of privacy.

Girls Around Me
Not currently relevant (was pulled out of App Store due to privacy concerns) but was a very creepy stalker app.  The app took the location check ins from Foursquare along with profile information from Facebook to create a map showing people’s names and personal information, faces and location, without anyone’s knowledge their information was available to look at on the app. After a blog post highlighting the app and its stalking tendencies went viral, Foursquare cut off the app’s API access to their data and Apple removed it from the App Store.

Lulu
Referred to as “Yelp for boys,” Lulu is an app for women that rates men.  By singing on through your Facebook (to prove that you are a woman, or at least registered on Facebook as a woman), you score men from 1-10 on categories like manners, sex and first kiss. Users have the option to be anonymous or share the reviews with others. #LuLuTags are used to give more information about a particular guy such as #StillLovesHisEx, #CouldUseSomeWork, #InACult, #NapoleonComplex, #TallDarkAndHandsome and many, many more.

Pikinis
Allows you to find all the pictures of your Facebook friends in bikinis and gives you the option to “pineapple” your favorite pictures for fast future viewing.  App accesses your Facebook page and then scans through the pictures of your friends for any pictures of them at the beach, pool, etc. (wearing a bikini).

Recognizr
Not available for download yet, but Swedish mobile software firm The Astonishing Tribe, is creating an app where you take a picture of someone and pull up their social network profiles.  Once the picture is taken it is sent to a server and using facial recognition technology it is matched up and sent back to the user with the subject’s name and links to their social networking sites.  Since the app is not available yet it is hard to say how the app will respect people’s privacy but some reviews say that one must opt in to be featured in the database.

Security Cam
App that turns a phone into a sneaky security camera, the phone has the ability to take pictures and video while the screen display is turned off.  The screen looks like it is asleep but the camera is on and taking pictures and videos.  Triggered by motion or sound setting turns your phone into a security and spy camera without anyone knowing they are being recorded.

Presence
Marketed as a way to reuse old iOS devices as a security system, the Presence app makes it possible for users to set up an iOS device to use as a video camera and another as a monitor through Wi-Fi. Both devices must have the app, and the device being used as a video camera must have the app turned on.  The app records a 5 second video clip when motion is detected and sends an email alert.  The developer’s People Power Cloud is allegedly secure and safe however the remote controlled camera is used through the internet.

Webcam Apps such as:
Spy Cams
Lets you watch live security camera feeds from around the world, 24 hours a day.

My Webcam
My Webcam Broadcaster function allows you to broadcast you own webcam for the world to see (also gives you the option to keep it “private” and manage broadcasts).  You can also watch other people’s webcams from around the world.

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