Articles: U.S.


Complying with the FCRA Amendments Before January 1, 2013 – a Step-By-Step Guide

By now, you should know that the Equal Employment Opportunity Commission (EEOC) has issued “Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions”, which is designed to restrict criminal background checks by employers, but you may not know that enforcement responsibility for the Fair Credit Reporting Act (FCRA) has been transferred from the Federal Trade Commission to the recently created Consumer Financial Protection Bureau (CFPB). What this means for employers is that they should expect heightened scrutiny on their FCRA compliance. The FCRA requires employers who use CRA’s to do their background checks to go through a four-step process, using federally-mandated forms. The four steps are: Step 1. Certification to the Consumer Reporting Agency; Step 2. Notice and Authorization from the Applicant; Step 3. Pre-Adverse Action Protocol; Step 4. Adverse Action Protocol. One of the CFPB’s first steps in its role as chief enforcer of the FCRA, was to revise that forms which employers must use, effective January 1, 2013. Make sure to get your forms ready and keep an eye on your state’s laws on this issue, including “ban the box” laws.

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The U.S. Safe Harbor – Fact or Fiction? (2008)

The U.S. Safe Harbor is an agreement between the European Commission and the United States Department of Commerce that enables organisations to join a Safe Harbor List to demonstrate their compliance with the European Union Data Protection Directive. This allows the transfer of personal data to the U.S. in circumstances where the transfer would otherwise not meet the European adequacy test for privacy protection. The Safe Harbor is best described as an uneasy compromise between the comprehensive legislative approach adopted by European nations and the self–regulatory approach preferred by the U.S. The Safe Harbor Framework has been the subject of ongoing criticism, including two previous reviews (2002 and 2004). Those reviews expressed serious concerns about the effectiveness of the Safe Harbor as a privacy protection mechanism. After ten years of public debate a Galexia study once again reviewed the U.S. Safe Harbor and found numerous problems with data accuracy and basic compliance with simple Framework requirements. Problems identified in previous reviews of the Safe Harbor have not yet been rectified, and the number of false claims made by organisations represents a significant privacy risk to consumers.

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Institutions Whose Degrees are Illegal to Use in Texas

The Texas Penal Code (Section 32.52) prohibits the use of fraudulent or substandard degrees “in a written or oral advertisement or other promotion of a business; or with the intent to: obtain employment; obtain a license or certificate to practice a trade, profession, or occupation; obtain a promotion, a compensation or other benefit, or an increase in compensation or other benefit, in employment or in the practice of a trade, profession, or occupation; obtain admission to an educational program in this state; or gain a position in government with authority over another person, regardless of whether the actor receives compensation for the position.” Violation of this law is a Class B misdemeanor. “Fraudulent or substandard degree” means a degree conferred in Texas in violation of the Texas Education Code; conferred in another state in violation of that state’s laws; conferred in another state by an institution that was not accredited by an accreditor recognized by the Coordinating Board and that has not been approved by the Coordinating Board for its degrees to be used in Texas; or conferred outside the United States by an institution that the Coordinating Board determines is not the equivalent of an accredited or authorized degree.

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What Does it Mean?

Criminal records are full of strange terms, abbreviations and legal jargon often making them difficult to decipher. Here are a few of the more common terms relating to case dispositions and their meanings that often show up in criminal history reports:

Nolle Prosequi – The prosecutor declares that he/she will not proceed with prosecuting the case at this time.  This is not the same as an acquittal as the case may be reopened at a later time;

Nolo Contendere – A defendant may enter this (no contest) as his or her plea.  It means the defendant will not contest the charges but neither admits guilt or claims innocence but agrees to accept punishment.

Pre-Trial Probation – We see this in some MA cases.  It’s a court approved agreement between the prosecutor and the defendant before a trial or a guilty plea.  The defendant is under the care of a probation officer for a set period of time.  Certain conditions may be imposed during this time such as performing community service, seeking or retaining employment, or drug or alcohol testing.  If the defendant successfully completes the probationary period, charges are dropped.  But, if the agreed upon terms are violated, the original case will proceed normally.

Pre-Trial Intervention – This is one we see in NJ cases on occasion.  Generally offered to first-time offenders and usually seeks to provide rehabilitative services to the defendant.  Similar to pre-trial probation, if pre-trial intervention is successfully completed, there is no record of conviction.   

Stet – This one shows up frequently in some reports out of MD.  It means “to stand” or “let it stand” and signifies a motion made by the state’s attorney for a conditional, indefinite stay of all further proceedings on a particular charge. The state can bring the charges back into court if the defendant gets into further trouble or fails to live up to any terms that were agreed to within a reasonable time period after the entry of stet.   

Continued Without Finding – This is another very common disposition in MA.  This is a plea agreement that technically is an admission that there are sufficient facts to find the defendant guilty of the charges.  It is sometimes called a CWOF (pronounced quaff) and is similar to a plea of no contest in other states.  The charges can be brought back if the defendant gets into further trouble within the continued timeframe.   

Deferred Adjudication – This one shows up most often in cases out of TX and is similar to pre-trial intervention.  Usually reserved for minor crimes or first offenders, if the defendant stays out of trouble and completes community service, an alcohol awareness program or some other condition set by the court during the deferral period, the charges are dismissed.

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Pacer U.S. Party/Case Index Being Replaced with Case Locator

The PACER Case Locator which allows you to search for court records in all district, bankruptcy, and appellate courts is now available. The Case Locator replaces the U.S. Party/Case Index and provides enhanced search and display capabilities including the ability to:

  • request lists of cases for a specified date range by court type;
  • conduct searches based on chapter, discharge date and dismissal date for bankruptcy cases;
  • access case information for the Judicial Panel on Multidistrict Litigation;
  • choose result formats, including HTML, delimited text, and XML which can be easily imported to other programs for analysis;
  • change the sort order of the results displayed; and
  • conduct refined searches within the results of a previous search.

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The Fundamentals of Public Record Searching

 The depth and scope of information that exists on people, businesses, and places is staggering. What used to be mostly paper and microfiche trails of data have turned into cyber trails of bytes managed by the government and by private companies.

“Yes,” says the clerk at the County Recorder’s Office. “All our recorded documents are online.”

She neglected to mention that only the index is online – not document images. She failed to mention the index only goes back to 2007, except for the records lost in the flood in the spring of 2009. She failed to say only real estate related records are in the index, only the debtors’ names are searchable, and there are no identifiers to distinguish the subject.

Oh yes, the system is managed by a private company that requires a user name and password. The clerk doesn’t know the phone number, but it doesn’t matter anyway because the company doesn’t return calls.

This story may sound far-fetched, but it is closer to the truth than you might think. Actually many of these searching idiosyncrasies mentioned really do exist on searchable websites for many counties and towns.

There is no easy way to generalize about government-held records because of the diverse nature and variations of public policies associated with them. In reality some records are closed or restricted.

The purpose of this article is to set the foundation on how to perform public record searching.

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