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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 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? 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 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....