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Background Checks: The Advent of the New California Employment Class Action

Class action litigation brought under the Fair Credit Reporting Act (FCRA) is on the rise—particularly in California—after the US Court of Appeals for the Ninth Circuit issued a 2017 decision applying a hypertechnical approach to the FCRA's disclosure requirements. Background checks are an integral part of the hiring process, but they open employers up to lawsuits for noncompliance with disclosure or adverse action requirements. Plaintiffs' firms are turning their attention to these cases because of the potential for statutory and actual damages, punitive damages, costs and attorneys' fees. In our recent webinars, we discussed strategies to help employers avoid and defend these claims. View Part I's slide deck here. View Part II's slide deck here.

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A Net-Neutral Decision for Health Care? What Providers Can Expect in the Wake of Net Neutrality Repeal

As the Federal Communications Commission repeals the Open Internet Order—more commonly known as the net-neutrality rules—health care consumers and providers have been left wondering how this change will affect their ability to receive and deliver health care using digital health tools. In this On the Subject, we outline how changes in internet access will affect digital health and what the regulatory landscape will look like in the coming months and years. Continue Reading.

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DOJ, FTC Issue Antitrust Guidance to Human Resources Professionals

On October 20, 2016, the United States Department of Justice Antitrust Division (DOJ) and Federal Trade Commission (FTC) issued joint Antitrust Guidance to Human Resource (HR) Professionals (the Guidance) involved in hiring and compensation decisions. The agencies issued the guidance to educate HR professionals about how the antitrust laws apply in the employment context. Read the full article here.  

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Consumer Health Information Update from Both Sides of the Atlantic

As we reported in May 2014, the Federal Trade Commission (FTC) convened stakeholders to explore whether health-related information collected from and about consumers — known as consumer-generated health information (CHI) — through use of the internet and increasingly-popular lifestyle and fitness mobile apps is more sensitive and in need of more privacy-sensitive treatment than other consumer-generated data. One of the key questions raised during the FTC’s CHI seminar is: “what is consumer healthinformation”?  Information gathered during traditional medical encounters is clearly health-related.  Information gathered from mobile apps designed as sophisticated diagnostic tools also is clearly health-related — and may even be “Protected Health Information,” as defined and regulated by Health Information Portability and Accountability Act (HIPAA), depending on the interplay of the app and the health care provider or payor community.  But, other information, such...

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New Guidance on Background Checks Issued by the FTC and EEOC

Last month, the Federal Trade Commission (FTC) and the Equal Employment Opportunity Commission (EEOC) issued joint guidance addressing the use of background checks in employment decisions.  The guidance does not offer new requirements related to background checks, but rather serves as a reminder to employers of their obligations under federal law when they use background checks, and creates a user-friendly guide to applicants and employees regarding their rights with respect to background checks. The guidance consists of two documents – one for employers, “Background Checks: What Employers Need to Know,” and one for applicants and employees, “Background Checks: What Job Applicants and Employees Should Know.”  The first document, “What Employers Need to Know,” offers guidance to employers on their existing legal obligations under the Fair Credit Reporting Act (FRCA), a federal law enforced by the FTC, and federal non-discrimination laws enforced by the EEOC....

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FTC Updates Guidelines for Making Proper Disclosures in Digital Advertising

by Jorge R. Arciniega, Elisabeth Malis Morgan and Heather Egan Sussman The U.S. Federal Trade Commission (FTC) released updated guidance on how to make online advertising and marketing disclosures “clear and conspicuous” to avoid consumer deception.  The guidelines affect the structure and format of digital advertisements and marketing initiatives such as the use of endorsements and testimonials. To read the full article, click here.

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FTC Recommends Privacy Practices for Mobile Apps

by Daniel F Gottlieb, Heather Egan Sussman and Randall J. Ortman A new Federal Trade Commission report urges mobile app platforms and developers to better inform consumers about their privacy practices. Mobile app platforms and developers should review their privacy policies to ensure accuracy, transparency and appropriate level of consumer choice. To read the full article, click here.

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Privacy and Data Protection: 2012 Year in Review

For more information, please contact Heather Egan Sussman, Daniel F. Gottlieb or Rohan Massey. Privacy and data protection continue to be an exploding area of focus for regulators in the United States and beyond.  This Special Report gives in-house counsel and others responsible for privacy and data protection an overview of some of the major developments in this area in 2012 around the globe, as well as a prediction of what is to come in 2013. To read the full article, click here.

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FTC: Employers Who Buy Profiles from Data Brokers to Supply Profiles on Applicants or Employees Must Comply with the FCRA

by Jennifer S. Geetter, Heather Egan Sussman and Carla A. R. Hine We recently released a Hot Topic that details the Federal Trade Commission's (FTC) settlement with Spokeo, Inc.  Spokeo collected information about individuals from online and offline sources to create profiles that included contact information, marital status, age range and in some cases included a person’s hobbies, ethnicity, religion, participation on social networking sites and photos that Spokeo attributed to a particular individual.  Spokeo marketed these profiles to companies in the human resources, background screening and recruiting industries as information to serve as a factor in deciding whether to interview or hire a job candidate.  The FTC concluded that Spokeo acted as a consumer reporting agency and thus violated the Fair Credit Reporting Act (FCRA) by: (1) failing to ensure the consumer reports it sold were used for legally permissible purposes; (2) failing...

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