Regulations impose new obligations in handling personal information and preventing identity crimes

Both the Commonwealth of Massachusetts and the federal government have issued new regulations designed to help safeguard the personal information of consumers.  The federal regulations, known as the “Red Flag Rules,” were promulgated by the Federal Trade Commission (“FTC”) in conjunction with several other agencies.  The Red Flag Rules became effective January 1, 2008, but the FTC delayed enforcement thereof until January 1, 2011 while Congress finalized legislation limiting the scope of businesses covered by the Rules.  The Red Flag Rules require financial institutions and creditors who maintain certain types of customer accounts to develop and implement programs designed to detect, prevent and mitigate identity theft.  Each program must include policies and procedures to identify and detect account activity that may signal identity theft (“Red Flags”) and to respond appropriately to these Red Flags when they are detected.  The term “creditor”, as defined in the Red Flag Program Clarification Act of 2010, means a creditor that (a) obtains or uses consumer reports in connection with a credit transaction, (b) furnishes information to consumer reporting agencies in connection with a credit transaction or (c) advances funds to or on behalf of a person, based on an obligation of the person to...

New Rules for Employers Regarding Requests for Job Applicants’ Criminal History

New Rules for Employers Regarding Requests for Job Applicants’ Criminal History OCTOBER 01, 2010 As part of an overhaul of the Criminal Offender Register Information (“CORI”) system in Massachusetts, new restrictions will apply to employer requests for criminal history information, beginning November 4, 2010. Here are some of the details. 1. New prohibition against criminal history requests on initial written application forms, with limited exceptions As of November 4, 2010, employers are prohibited under a new subsection of the Fair Employment Practices from requesting any criminal history information on an initial written job application form. This “Ban the Box” provision means employers must change their application forms and get rid of the ubiquitous felony/misdemeanor checkbox. This new rule does not apply to employers that are required by law not to employ people who have been convicted of particular offenses, or to positions for which there is a disqualification under law based on a criminal conviction. (For example, positions in the fields of banking and financial services, child education or care, and health services, to name a few, have statutorily-mandated disqualifications prohibiting people with certain types of criminal convictions from being employed in those positions.) Importantly, the new law does not...

Employers: Are You in Compliance with the New Personnel Records Law?

Employers: Are You in Compliance with the New Personnel Records Law? OCTOBER 01, 2010 The compliance date has long since passed for employers to begin notifying employees when negative information is placed in their personnel records. A major addition to the Massachusetts Personnel Records Statute, G.L. c. 149, § 52C, became effective as of August 5, 2010. 1. Employers must notify an employee of any negative information added to the employee’s personnel record Employers are now required to notify an employee within 10 days of the employer placing in the employee’s personnel record any information that has been or may be used to negatively affect the employee’s qualification for employment, promotion, transfer, additional compensation, or the possibility that the employee will be subject to disciplinary action. The definition of “personnel record” has not changed, and remains broadly defined as any record that has been, is, or may be used relative to the employee’s qualifications for employment, promotion, transfer, additional compensation, or disciplinary action. Under this definition, any documented comment regarding an employee, whether in an email, a private note, or otherwise, could be deemed part of the employee’s personnel record. Although the precise contours of the new law have not...

Title II of GINA Becomes Effective November 19, 2009

Title II of GINA Becomes Effective November 19, 2009 MARCH 01, 2010 On May 21, 2008, President Bush signed into law the Genetic Information Nondiscrimination Act of 2008 (GINA). Title II of the Act applies to employers with 15 or more employees. Purpose of GINA. Advances in the fields of genetics and testing have now made it possible to identify individuals at risk for developing specific diseases and disorders. As this information becomes more accessible, the concerns about the use of such information by employers and health insurers become greater. Title II of GINA was enacted to prohibit employers from intentionally acquiring genetic information about applicants and employees and to protect the confidentiality of such information. Genetic information defined. The definition of “genetic information” includes not only an individual’s genetic tests, but also the genetic tests and medical history of family members. Prohibited practices. Employers are prohibited from requesting, requiring or purchasing genetic information of an applicant or employee. They are also prohibited from using such information in connection with the terms, conditions or privileges of employment. Confidentiality requirements. Employers who have possession of genetic information must keep it confidential and treat it the same way as medical information generally....

Keeping Secrets: Securing the crown jewels in a down economy

Keeping Secrets: Securing the crown jewels in a down economy APRIL 01, 2009 I got a panicked call last week from a client who had just laid off one of his senior managers. New to this heartwrenching process, this CEO had spent weeks running the numbers and hammering out what he thought would be a fair severance package. He had drafted his announcement to the staff and mapped out a transition scenario. He had scripted, rehearsed, and re-rehearsed the termination interview. He had carefully timed the interview, which, while painful, had gone essentially according to plan. Believing that he had handled the termination as well as he could, my client finally was able to get a full night’s sleep. But while driving to work the following morning,my client realized that there was one very important thing that he had missed: he had done nothing to secure the highly confidential and valuable company information to which his former manager had had free access, information that could cause my client irreparable harm were it to fall into the wrong hands. In the world of intellectual property law, confidential information that provides a company with an advantage over its competitors is protectable as...

Americans With Disabilities Act Amendments Act Of 2008

Americans With Disabilities Act Amendments Act Of 2008 FEBRUARY 01, 2009 President Bush signed the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”) on September 25, 2008, and its changes took effect on January 1, 2009 . The ADAAA represents the first major revision to the Americans with Disabilities Act since its enactment in 1990 and expands the number of individuals who qualify for its protection. The changes apply to all employers covered by the ADA : those with fifteen or more employees for twenty or more weeks in the current or previous calendar year. The ADAAA maintains the ADA ‘s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it makes several important changes. Notably, the ADAAA: rejects the U.S. Supreme Court’s interpretation that “substantially limits” means “prevents or severely restricts” and calls for a lower standard prohibits the consideration of mitigating measures such as medication, hearing aids or accommodations (besides ordinary eyeglasses or contact lenses) in determining whether an impairment constitutes a disability; expands and clarifies what fits within the definition of “major life activities,”...

New FMLA Regulations Released: Implications For Employers

New FMLA Regulations Released: Implications For Employers FEBRUARY 01, 2009 On January 28, 2008, President Bush signed amendments to the Family and Medical Leave Act of 1993 (FMLA) into law. On November 17, 2008, the United States Department of Labor (DOL) published its Final Rule to implement these amendments. These regulations, which are the first in the FMLA’s fifteen-year history, took effect on January 16, 2009. Highlights of the regulatory changes in the Final Rule include: Changes to employee eligibility. To be covered under the FMLA under the old rules, an employee had to be employed by the employer for at least 12 months and work at least 1250 hours during the 12 months preceding the start of the requested FMLA leave. Those 12 months were not required to be consecutive, so any employment, regardless of gaps in employment, with that employer counted toward the eligibility period. Under the Final Rule, periods of employment before a break in employment of seven years or more are not counted in determining whether an employee has been employed for 12 months, subject to some exceptions. Additionally, employees taking leave due to military obligations must be credited for the hours of service they would...