PI Newswire

Here’s some good news for em­­ployers that check workers’ compensation claims against an applicant’s claim he’s never been injured on the job: You don’t have to inform him where you got the information be­­fore you take action because workers’ comp checks aren’t background in­­vestigations subject to the federal Fair Credit Reporting Act (FCRA).

Recent case: Jason Bachman applied for a job as a mailman with the U.S. Postal Service. He was hired and completed a standard medical assessment form, which asked whether he had ever been injured on the job. He answered “No.”

The post office then investigated and found Bachman had filed prior claims. It fired him for essentially lying on his form.

Bachman sued, alleging he should have been informed about the investigation before being terminated. He contended the investigation was a consumer report subject to the FCRA.

The 5th Circuit Court of Appeals dismissed his case. It said the investigation wasn’t a consumer report because his past injuries weren’t related to his credit worthiness, character, general reputation or mode of living. (Bachman v. Donahoe, No. 11-11060, 5th Cir., 2012)

Final note: It appears the inquiry into medical history was made post-offer. Thus, it was legal if it was business related. Presumably, one’s ability to walk or drive is important when delivering mail. In addition, Bachman was terminated for not being up front about his past claims, not because he had claims.

View source…

Tony and Angela Wood will be eating Peking duck at a Chinese restaurant in Hornsby next Sunday, a tradition they established to commemorate the birthday of their daughter, Anna. She would have been turning 32 on that day and Peking duck was her favourite food.

It seems extraordinary that almost 17 years have passed since the 15-year-old schoolgirl died in October 1995 after having taken an ecstasy tablet at a rave party, combined with what a coroner later determined was a dangerous amount of water.

The tragedy rocked the state, generating headlines and soul-searching for weeks. Anna was an innocent abroad from an upright family and her fate tolled a warning to all parents: it could happen to your child.

”When we bump into some of her school friends … I hardly recognise them, they’re so grown up,” Mr Wood told the Herald. ”That’s when you start to think ‘What would she be like today?”’

The drugs policy issue has been reignited by a report from Australia21, a group of experts and high-profile citizens who have declared the ”war on drugs” a failed policy and called for a debate on new directions. While many people, including the former head of the Australian Federal Police Mick Palmer, appear to have softened or changed their hardline views over the decade, the Woods remain staunchly opposed to retreat from all-out war.

Read more…

The following item may be of interest to investigative professionals providing legal defense investigations to the indigent. ISPLA has been intricately involved in working with several organizations concerned with adequate funding of indigent defense investigations, including meeting with various sections of the U.S. Department of Justice. The General Accountability Office (GAO) report of May 9, 2012 provides considerable reference material on this subject.

The Sixth Amendment to the U.S. Constitution guarantees every person accused of a crime the right to counsel. States and localities generally fund indigent defense services, and the Department of Justice (DOJ) also provides funding that can be used for these services. GAO was asked to review federal support for indigent defendants. This report addresses, for fiscal years 2005 through 2010, the (1) types of support DOJ provided for indigent defense; (2) extent to which eligible DOJ funding was allocated or awarded for indigent defense, the factors affecting these decisions, and DOJ’s actions to address them; (3) percentage of DOJ funding allocated for indigent defense and how it was used; (4) extent to which DOJ collects data on indigent defense funding; and (5) extent to which DOJ assesses the impacts of indigent defense grants, indigent defense programs have been evaluated, and DOJ has supported evaluation efforts. GAO surveyed (1) all 4,229 grant recipients about funding allocations and (2) a sample of 253 public defender offices about factors influencing their decisions to apply for funding. Though not all survey results are generalizable, they provide insights. GAO also analyzed grant related documents and interviewed relevant officials. It recommended that DOJ increase grantees’ awareness that funding can be allocated for indigent defense and collect data on such funding. The DOJ concurred with the GAO’s recommendations.

Additional information is available at:

http://www.gao.gov/assets/600/590736.pdf

ISPLA’s has advocated that serious attention be given towards increasing funding for investigative and expert witness costs when addressing indigent defense issues.

Bruce Hulme
ISPLA Director of Government Affairs
www.ISPLA.org

“Doing more than just providing information to investigative and security professionals.”

British officials have given their word: “We won’t read your emails.”

But experts say the government’s proposed new surveillance program will gather so much data that spooks won’t have to read your messages to guess what you’re up to.

The U.K. Home Office stresses it won’t be reading the content of every Britons’ communications, saying the data it seeks “is NOT the content of any communication.” It is, however, looking for information about who’s sending the message and to whom, where it’s sent from and other details, including a message’s length and its format.

The proposal, unveiled last week as part of the government’s annual legislative program, is just a draft bill, so it could be modified or scrapped. But if passed in its current form, it would put a huge amount of personal data at the government’s disposal, which it could use to deduce a startling amount about private lives — from sleep patterns to driving habits or even infidelity.

“We’re really entering a whole new phase of analysis based on the data that we can collect,” said Gerald Kane, an information systems expert at Boston College. “There is quite a lot you can learn.”

Read more…

We are all aware of the the recent US Supreme Court ruling regarding the use of GPS by law enforcement.  And from that time we have wondered what impact this might have on our profession and private use.  Well, here is an update that addresses just that — and it doesn’t look good.  As noted in this message, members from NCISS at the recent Hit the Hill in Washington DC presented these concerns, in advance of these hearings, to our elected officials.  Please see below for a very important update from NCISS Legislative Chair, Jimmie Mesis and be prepared to communicate with your own elected representatives on how this could negatively impact your business and how you serve and protect your clients (to use a phrase that only law enforcement feels entitled to).

Committee Examines Use of GPS
The House Subcommittee on Crime, Terrorism, and Homeland Security held a hearing today on HR 2168, the “Geolocational Privacy and Surveillance Act”.  The legislation would essentially ban the private use of GPS devices.  It would permit the use of technology that reveals an individual’s location for law enforcement if police had obtained a warrant.

Virtually all of the discussion during the hearing dealt with the bill’s effect on the police ability to obtain the location of individuals.  Witnesses from the Federal Law Enforcement Association and National District Attorneys Association expressed concern that the warrant provision made it too difficult for police to obtain information in many instances.  A great deal of focus was on the ability to obtain location information through cellular phone records.

A witness from the Computer & Communications Industry Association supported the restrictive legislation.  His concern was to minimize any privacy concerns by cell phone users.  The American Civil Liberties witness strongly supported the legislation

NCISS is strongly opposed to HR 2168 because it would deny private investigators the ability to use GPS tracking devices.  Our opposition was most recently made clear during the annual “Hit the Hill” meetings with Congress.  Similar legislation is pending in the Senate, S 1212.

Congressional interest in the issue follows a recent US Supreme Court decision, US v. Jones, which ruled that police must obtain a warrant prior to attaching a GPS unit to an automobile.

The NCISS Legislative Committee will continue to monitor the progress of all GPS tracking related legislation and keep the profession apprised of our efforts to maintain our usage of GPS devices for lawful purposes.

Keeping the profession informed,
Jimmie Mesis, LPI
NCISS Legislative Chairman
jim@nciss.org     

Larry Sabbath
Legislative Advocate
lsabbath@lobbyist4u.com

NCISS
7501 Sparrows Point Boulevard
Baltimore, Maryland 21219-1927
T-(800) 445-8408  F-(410) 388-9746

(Permission granted to repost this message)

The National Council of Investigation and Security Services, Inc., is a cooperative effort of those companies and associations responsible for providing private security and investigation services to the legal profession, business community, government and the public. Each day we find an increasing number of problems confronting the orderly growth of our profession. These problems include, among others: overly restrictive legislation regarding training and standards, proliferation of legislation requiring local licensing, public misunderstanding and misinformation on the role and contribution of private investigators and security services, and an uninformed media. It is the role of NCISS to meet and solve these problems while seeking to uncover and recommend action on any hidden potential problems which may have an effect on our profession.

View source…

Since July 2011, ISPLA and our investigative and security professional colleagues have expressed concern about the ongoing British investigation of private investigators’ actions in reference to the Murdoch scandal of phone hacking and other questionable activities delving into the medical and financial records of subjects at the request of UK media outlets.

ISPLA’s Nicole Bocra and private investigator and investigative reporter Pat Clawson have provided us with links to current UK coverage including a TV expose that will eventually be replicated by others here in the U.S.

The Senate Commerce Committee last week announced that they too plan on holding hearings on the same subject matter. Last year, the House Homeland Security and Commerce Committees also called for hearings.

Mr. Clawson wrote in an email:

“In the United Kingdom, the Channel 4 (London) “Dispatches” TV
investigative reporting team is broadcasting the results of a
year-long undercover probe of illegal private investigation practices.
Extensive hidden camera video documenting misdeeds is featured in the
show, titled “Watching the Detectives.”

The Channel 4 promo states:

“How safe are your secrets? Channel 4 Dispatches reveals how easy it
is to buy our most personal and confidential information. In a
year-long undercover investigation, private detectives sell us access
to health and criminal records, mobile phone bills and bank accounts.
The programme discovers the extent of the black market in personal
data and reveals how supposedly secure databases are open to exploitation.”

Clawson further pointed out that “this is certain to cause an uproar, and it is likely to attract
attention from American journalists and legislators…It would be a smart move for private investigator trade associations in the USA to point out that our PIs (unlike those in the UK) are carefully regulated by the government and many of the practices described in the British broadcast were long ago outlawed in America.”

News reports – and previews of the TV documentary – are available at the following links.

http://www.channel4.com/programmes/dispatches

http://www.guardian.co.uk/technology/video/2012/may/13/private-investigators-personal-data-video?newsfeed=true

http://www.guardian.co.uk/technology/2012/may/12/private-investigators-financial-criminal-records?newsfeed=true

http://www.guardian.co.uk/technology/2012/may/12/trade-personal-data-secret-investigation?intcmp=239

Stay tuned as further developments emerge from the UK hearings being held by Lord Justice Brian Leveson continue into the phone hacking cover-up and extent of involvement of Rupert Murdoch and News Corp.

Bruce Hulme
ISPLA Director of Government Affairs
www.ISPLA.org

Resource to Government, the Media, and to Investigative and Security Professionals

The Internet surveillance legislation sponsored by Public Safety Minister Vic Toews has disappeared down a dark legislative hole. For all intents and purposes, the bill is dead.

If the Harper government still wants to pass a law that would make it easier for police to track people who use the web to commit crimes, it will have to start from scratch.

That new bill, if there is one, will probably be shepherded by a different minister. That’s how much damage this botched legislation inflicted on the government and on Mr. Toews.

Bill C-30, also known as the lawful access legislation, would allow police to compel Internet service providers to cough up identifying information about anyone using the Internet.

The authorities would not be able to track a person’s activity on the web without a warrant. But they could find out whose name is attached to an IP address without that warrant, and without the person’s knowledge or consent, which is why both the federal and provincial privacy commissioners strongly objected to the bill as an unjustified violation of privacy rights.

Read more…

Defendants unable to pay their full bond would have no choice but to use a bail bondsman or sit in jail under a bill pending in the Missouri General Assembly.

The measure — which the bail bond industry argues is essential for its survival — stalled earlier this year when the legislation failed to pass out of a House committee.

But supporters managed to attach it as an amendment to a pair of bills heading to a conference committee to work out differences between the House and Senate, keeping it alive as the legislative session approaches adjournment next Friday.

“We are extremely hopeful that this can finally get done,” said Bart Cooper, owner of Freedom Bonding in Kansas City.

Critics, however, contend the potential change could be devastating.

Read more…

The Employee Polygraph Protection Act regulates (and restricts) the use of polygraph tests in the workplace. For example, it prohibits an employer from disclosing to anyone an employee’s polygraph results without the employee’s consent, and also prohibits an employer from taking an adverse action against an employee based on the results of a polygraph.

Bass v. Wendy’s of Downtown, Inc. (N.D. Ohio 5/1/12) discusses the limits of both of these prohibitions. More importantly, however, this case raises a more practical question about the use of polygraphs in the workplace.

In 2007, a cash deposit went missing from Wendy’s. As part of its investigation, Wendy’s asked Donald Bass to submit to a polygraph examination, which he failed. Despite the failed test, Bass continued to work for Wendy’s as a part-time employee. More than two years later, Wendy’s passed over Bass for a promotion to General Manager. A few months later, it fired him for inappropriately touching a female employee.

Bass claimed that Wendy’s violated the EPPA by: 1) disclosing the results of his 2007 polygraph to the Ohio Civil Rights Commission in support of its position that the store did not discriminate against him; and 2) relying on the 2007 polygraph to deny him the promotion.

The court dismissed both claims:

The court dismissed the wrongful disclosure claim because Bass could not articulate how he had been damaged by the statement to the OCRC.
The court dismissed the failure-to-promote claim because Wendy’s would have denied him the position even if he had not failed the polygraph.

Read more…

New York congressman Eliot Engel Friday introduced SNOPA, legislation to protect users of social networking from having to grant employers or schools access to their personal sites.

The Social Networking Online Protection Act would restrict current or potential employers “from requiring a username, password or other access to online content.”

The legislation would prevent employers from seeking access to social networking sites “to discipline, discriminate or deny employment to individuals, nor punish them for refusing to volunteer the information.”

SNOPA would extend to colleges, universities and K-12 schools.

Engel’s legislation has yet to be assigned to a committee, according to his press secretary Joe O’Brien.

Read more…

A Conservative bill aiming to clarify laws around citizen’s arrests will grant greater powers to private security agencies, something police and the Canadian Bar Association say will give poorly trained ‘rent-a-cops’ greater latitude to arrest Canadians.

“Such personnel often lack the necessary range of equipment or adequate training to safely and lawfully make arrests in a manner proportionate to the circumstances,” Eric Gottardi, vice chair of the Canadian Bar Association’s National Criminal Justice Section, told a parliamentary committee recently.

Bill C-26: The Citizen’s Arrest and Self Defence Act, now at third reading in the House of Commons, clarifies and simplifies the rules on when citizens can take the law into their own hands. The bill is intended to repeal around 10 existing Criminal Code provisions dealing with self-defence, defence of property and citizen’s arrest, and collapse them into three easier to understand sections.

Green Party Leader Elizabeth May — the only MP to oppose the bill — said C-26 will encourage vigilantism and amounts to a “very big gift to the private security companies.”

“The constitution of this country is governed by the concept of peace, order and good government,” May said. “This stuff goes off in a wacky new direction, and it worries me.”

Read more…

I suggest that my investigative and security professional colleagues visit the link below and also review today’s press release regarding EEOC directives concerning employers’ use of arrest and conviction records.

http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

Today, in an April 25 press release, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance for employers’ use of arrest and conviction records in employment decisions. ISPLA, and other stakeholders, have previously commented on this subject matter. You are encouraged to take some time to become familiar with this issue.

EEOC Issues Enforcement Guidance
Commission Updates Guidance on Employer Use of Arrest and Conviction Records

WASHINGTON — The U.S. Equal Employment Opportunity Commission (EEOC) today issued an updated Enforcement Guidance on employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964, as amended (Title VII). The Commission today voted 4-1 to approve the guidance document. The Commission also issued a Question-and-Answer (Q&A) document about the guidance. The Enforcement Guidance and Q&A document will be available on the EEOC’s website at www.eeoc.gov.

“When the Commission met publicly to discuss this subject in July, 2011, I said that I hoped the meeting would help to inform the Commission’s consideration of revisions to existing EEOC guidance. We had excellent testimony from two public meetings and hundreds of written comments submitted by a diverse group of commenters to inform our deliberations concerning the new guidance,” said EEOC Chair Jacqueline A. Berrien. Chair Berrien added, “The new guidance clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders.”

While Title VII does not prohibit an employer from requiring applicants or employees to provide information about arrests, convictions or incarceration, it is unlawful to discriminate in employment based on race, color, national origin, religion, or sex. The guidance builds on longstanding guidance documents that the EEOC issued over twenty years ago. The Commission originally issued three separate policy documents in February and July 1987 under Chair Clarence Thomas and in September 1990 under Chair Evan Kemp explaining when the use of arrest and conviction records in employment decisions may violate Title VII. The Commission also held public meetings on the subject in 2008 and 2011. The Enforcement Guidance issued today is predicated on, and supported by, federal court precedent concerning the application of Title VII to employers’ consideration of a job applicant or employee’s criminal history and incorporates judicial decisions issued since passage of the Civil Rights Act of 1991. The guidance also updates relevant data, consolidates previous EEOC policy statements on this issue into a single document and illustrates how Title VII applies to various scenarios that an employer might encounter when considering the arrest or conviction history of a current or prospective employee. Among other topics, the guidance discusses:

• How an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against employment discrimination under Title VII;
• Federal court decisions analyzing Title VII as applied to criminal record exclusions;
• The differences between the treatment of arrest records and conviction records;
• The applicability of disparate treatment and disparate impact analysis under Title VII;
• Compliance with other federal laws and/or regulations that restrict and/or prohibit the employment of individuals with certain criminal records; and
• Best practices for employers.

The materials for the public meetings held on the use of arrest and conviction records, including testimony and transcripts, are available at http://eeoc.gov/eeoc/meetings/index.cfm.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.

Bruce Hulme
ISPLA Director of Government Affairs

To join and help our proactive work from State Capitols to the Nation’s Capitol please visit: www.ISPLA.org