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Compliance News Flash – April 1, 2019

Arnall Golden Gregory LLP is pleased to provide you with the Compliance News Flash, which includes current news briefs relevant to background screening, immigration and data privacy, for the benefit and interest of our clients as well as employers and consumer reporting agencies generally.

  • After taking a small hiatus, the Compliance News Flash is back and I just returned from a wonderful NAPBS conference in Washington, D.C. where I presented, along with my colleague Kevin Coy, on the topic of accuracy of information in background check reports and what that means under the Fair Credit Reporting Act (FCRA). Speaking of “accuracy” and consumer reporting, Maneesha Mithal (Associate Director, Division of Privacy and Identity Protection, Bureau of Consumer Protection at the Federal Trade Commission (FTC)) spoke at the conference. Two points to note. One is that the FTC is considering the creation of a model disclosure and authorization form for use by employers. That is welcome news. Two, she discussed a 2018 settlement in which the FTC alleged that a tenant screening company failed to take reasonable steps to ensure the accuracy of tenant screening information provided to clients (Click here). One issue, per Ms. Mithal, that the FTC took issue with related to the company’s “soft matching” in its matching practices. Generally, the company’s matching criteria required an exact match on the applicant’s last name only, and a “soft” match was used for other identifiers (Click here to read the complaint).

  • Comprehensive privacy laws are apparently a thing now. There is the General Data Protection Regulation (GDPR) in the European Union and California’s Consumer Privacy Act. Next we may have Washington State passing comprehensive privacy legislation, making it the second state to do so. The statute is not finalized, but the state Senate passed a bill with bipartisan support, and a companion bill was introduced in the House and going through the committee process. Although the Washington Privacy Act (click here for SB 5376) could be amended in committee, it does to date include the following features (i) controller versus processor distinctions; (ii) consumer rights such as access, correction, erasure, portability; (iii) broad scope of applicability including whenever the products or services target Washington residents; and (iv) a requirement for meaningful privacy notices. As of now, there is an exemption for personal data under both the FCRA and the Driver’s Privacy Protection Act, which relates to background screening operations.  

  • It is the equivalent of the NCAA March Madness for H-1B petitioners and beneficiaries. The fiscal year (FY) 2020 H-1B cap season is officially in full swing. Today, U.S. Citizenship and Immigration Services (USCIS) began accepting H-1B petitions subject to the FY 2020 cap on April 1, 2019. Once an H-1B petition subject to the cap is filed, the first step is that it must be selected by USCIS under a random lottery. This is because there is greater demand than there are visa numbers, so initial selection is done on the basis of a random lottery. If one’s H-1B petition is selected, it will then be adjudicated on the merits and the earliest date employment can begin is October 1, 2020. There are changes to this year’s program and moving forward, including (i) the order in which visas will be issued in that graduates with advanced degrees from U.S. institutions of higher education will be selected first, over those with bachelor’s degrees; (ii) premium processing will be offered in a two-phased approach; and (iii) there is a new H-1B Employer Data Hub where one can see who is requesting such visas for professional workers. Click here for more information about the H-1B FY 2020 Cap Season. For next year’s program, there will be a registration system in place. Click here to read more about the electronic registration program for fiscal year 2021. 

    The following states and cities passed salary history restrictions, ban the box ordinances, and/or background screening requirements:
  • On March 13th, Cincinnati, Ohio passed Ordinance No. 83, which prohibits employers from inquiring about a job applicant’s salary history.
  • On March 14th, North Dakota enacted H.B. 1282, which prohibits public employers from inquiring about a job applicant’s criminal history before the applicant has been accepted for an interview by the employer.

  • On March 15th, South Dakota enacted H.B. 1032, which requires a fingerprint-based background check for an individual to be licensed to provide money transmissions.

  • On March 19th, Kentucky enacted H.B. 158, which requires staff members of child-caring facilities to complete fingerprint-based background checks.

  • On March 19th, Kentucky enacted S.B. 15, which amends the requirements for state background checks for school district employees.

  • On March 19th, West Virginia enacted H.B. 3007, which authorizes the Commissioner of Agriculture to require background checks as a condition of employment.

  • On March 11th, the New Mexico House of Representatives passed S.B. 96, which would prohibit private employers from inquiring about a job applicant’s arrest or conviction history until after the initial employment application process.

  • On March 16th, the Maryland House of Representatives passed H.B. 994, which would prohibit employers from inquiring about criminal histories before a conditional offer of employment has been extended.

  • On March 22nd, the Vermont Senate passed S. 134, which would require background investigations to be renewed every ten years for state employees with access to federal tax information.

  • On March 27th, the Illinois Senate passed S.B. 1965, which would amend the Health Care Worker Background Check Act to provide options for individuals with a disqualifying conviction record to request a waiver of the prohibition of employment.


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

Montserrat Miller  

Montserrat C. Miller
Partner, Atlanta Office



The information presented provides a general summary and/or recent legal and regulatory developments. It is not intended to be, and should not be relied upon as legal advice.
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