Investigative & Security Professionals for Legislative Action

Current Legislative News

<< First  < Prev   1   2   3   4   5   ...   Next >  Last >> 
  • 27 Sep 2017 2:12 PM | Anonymous member (Administrator)

    The U.S. Federal Trade Commission, along with privacy law enforcement agencies in Australia and Canada, has received a global data protection award for its cross-border investigation of the massive AshleyMadison.com data breach in July 2015, which affected consumers in nearly 50 countries.

    The FTC charged the dating website’s operators with deceiving consumers and failing to protect customer information in 36 million users’ accounts. In 2016, a court settlement required the defendants to implement a comprehensive data-security program and pay a total of $1.6 million to settle FTC and state actions.

    The Grand Award for Innovation was presented on September 26 in Hong Kong by the International Conference of Data Protection and Privacy Commissioners (ICDPPC), regarded as the premier global forum for privacy authorities, representing 119 data protection entities. The three agencies also received the top award for “Dispute Resolution, Compliance and Enforcement.”

    The Office of the Privacy Commissioner of Canada and the Office of the Australian Information Commissioner contributed to the FTC’s investigation and reached their own settlements with the company. The FTC relied on key provisions of the U.S. SAFE WEB Act that allow it to share information with foreign counterparts to combat deceptive and unfair practices that cross national borders.

    In presenting the award to the FTC, the Office of the Australian Information Commissioner and the Office of the Privacy Commissioner of Canada, ICDPPC Chair John Edwards called the agencies’ work “a model on how to achieve cross-border cooperation in privacy enforcement.” The FTC’s efforts were led by its Division of Privacy and Identity Protection and Office of International Affairs.

    In December 2015, the operators of the Toronto-based AshleyMadison.com dating site agreed to settle FTC charges that they deceived consumers and failed to protect 36 million users’ account and profile information in relation to a massive July 2015 data breach of their network. The site had members from over 46 countries.

    The settlement required the defendants to implement a comprehensive data-security program, including third-party assessments. In addition, the operators were to pay a total of $1.6 million to settle FTC and state actions.

    “This case represents one of the largest data breaches that the FTC has investigated to date, implicating 36 million individuals worldwide,” said Edith Ramirez, who was FTC Chairwoman at that time. “The global settlement requires AshleyMadison.com to implement a range of more robust data security practices that will better-protect its users’ personal information from criminal hackers going forward.”

    “Creating fake profiles and selling services that are not delivered is unacceptable behavior for any dating website,” said Vermont Attorney General William H. Sorrell, “I was pleased to see the FTC and the state attorneys general working together in such a productive and cooperative manner. Vermont has a long history of such cooperation, and it’s great to see that continuing.”

    “In the digital age, privacy issues can impact millions of people around the world. It’s imperative that regulators work together across borders to ensure that the privacy rights of individuals are respected no matter where they live,” said Commissioner Daniel Therrien of the Office of the Privacy Commissioner of Canada.

    “My office was pleased to work with the FTC and the Office of the Canadian Privacy Commissioner on this investigation through the APEC cross-border enforcement framework,” said Australian Privacy Commissioner Timothy Pilgrim. “Cross-border cooperation and enforcement is the future for privacy regulation in the global consumer age, and this cooperative approach provides an excellent model for enforcement of consumer privacy rights.”

    According to the FTC complaint, until August 2014, operators of the site lured customers, including 19 million Americans, with fake profiles of women designed to convert them into paid members. Only users who paid to access the site could use all of its features, such as sending messages, chatting online in real time, and sending virtual gifts.

    According to the FTC complaint, the defendants assured users their personal information, such as date of birth, relationship status and sexual preferences, was private and securely protected. But the FTC alleged that the security of AshleyMadison.com was lax.

    According to the complaint, the defendants had no written information security policy, no reasonable access controls, inadequate security training of employees, no knowledge of whether third-party service providers were using reasonable security measures, and no measures to monitor the effectiveness of their system’s security.

    Intruders accessed the companies’ networks several times between November 2014 and June 2015, but due to their lax data-security practices, the defendants did not discover the intrusions, the agency has alleged.

    On July 12, 2015, the companies’ network experienced a major data breach that received significant media coverage. In August of 2015, the hackers published sensitive profile, account security, and billing information for more than 36 million AshleyMadison.com users. According to the complaint, this included information that the defendants had retained on users who had paid $19 for a “Full Delete” service to purportedly remove their data from the site network.

    The complaint charged the defendants misrepresented that they had taken reasonable steps to ensure AshleyMadison.com was secure, that they had received a “Trusted Security Award”, and that they would delete all of the information of consumers who utilized their Full Delete service. The complaint also charged the defendants with misrepresenting that communications received by members were from actual women when in fact they were from fake engager profiles.

    Finally, the FTC alleged that defendants engaged in unfair security practices by failing to take reasonable steps to prevent unauthorized access to personal information on their network, causing substantial consumer harm.

    In addition to the provisions prohibiting the alleged misrepresentations and requiring a comprehensive security program, the federal court order sought an $8.75 million judgment which would be partially suspended upon payment of $828,500 to the Commission. If the defendants are later found to have misrepresented their financial condition, the full amount will immediately become due. An additional $828,500 will be paid to the 13 states and the District of Columbia.

    The FTC worked with Alaska, Arkansas, Hawaii, Louisiana, Maryland, Mississippi, Nebraska, New York, North Dakota, Oregon, Rhode Island, Tennessee, and Vermont – and the District of Columbia, to secure a settlement against the following defendants: 1) ruby Corp, formerly known as Avid Life Media Inc.; 2) ruby Life Inc., also doing business as AshleyMadison.com, and formerly known as Avid Dating Life Inc.; and 3) ADL Media Inc.

    Let’s see how the FTC and other U.S. and State regulators handle the recent Equifax databreach.

    Bruce H. Hulme, CFE, BAI

    ISPLA director of Government Affairs

    www.ISPLA.org

    Resource to Investigative & Security Professionals

  • 12 Jun 2017 6:15 PM | Anonymous member (Administrator)

    June 9, 2017 - Comments in response to Federal Register notice of DOJ published on13 April 2017 - in which ISPLA concurs - by the American Association for the Advancement of Science, American Chemical Society, Federation of Associations in Behavioral and Brain Sciences, and Human Factors and Ergonomics Society.

    Our organizations have long insisted all branches of government should receive advice on the best scientific information available. Public trust in the integrity of science and scientists remains essential to the effective use of scientific research to improve human welfare.

    Thus, we have long been concerned by reports from sources independent of the Department of Justice (DOJ), most notably the 2009 National Academies of Sciences Report Strengthening Forensic Science in the United States: A Path Forward, that have exposed major gaps in the scientific basis for commonly used forensic analysis techniques.

    These reports and evaluations by others and by American Association for the Advancement of Science (AAAS) are clear: the reliability and validity of many forensic investigative and prosecutorial practices have not been established on sound scientific bases. We simply do not know whether many forensic practices are reliable or valid scientifically, and in some circumstances forensics practices are demonstrably unreliable. Yet the results of many of these forensic disciplines continue to be commonly used as evidence in our courtrooms.

    It is critical that the DOJ and stakeholders in the public and private sector continue to make progress on identifying the scientific and technical gaps that exist in our knowledge base and pursue the scientific investigations necessary to close those gaps. Many people have been convicted on the basis of forensic evidence that investigators, prosecutors, and juries alike considered reliable and valid, only to find that it was not, often many years later. According to the National Registry of Exonerations, which has records of exonerations dating back to 1989, 490 individuals have been exonerated after being convicted on the basis of false or misleading forensic science. Ensuring that scientific standards for forensic evidence used in our judicial system remain at the highest level is essential to advancing science and serving society.

    The existing shortcomings in our scientific base for forensic techniques, standards for evaluating and presenting that evidence, and forensic training and codes of conduct come with high societal costs, leaving some guilty parties free while other innocents languish, wrongfully convicted. And when lapses and errors are exposed to light, years of appeals and millions of dollars of resources remediating those errors can result. Not only are people’s lives at stake, society’s faith in the American justice system is at risk.

    Many critical issues remain to ensure rigorous science is used in convicting the guilty and exonerating the innocent. These include evaluating the foundational science, setting forth a discipline-specific research agenda for forensic fields, developing clearer standards of practice, and establishing research-based approaches to communicating forensic science information accurately in a legal setting.

    The National Commission on Forensic Science (NCFS) has served a crucial role in bringing together all relevant stakeholders–academic scientists, forensic science practitioners, defense and prosecutorial lawyers, judges, law enforcement, and victims’ advocates–to further the science and practices that will improve legal proceedings and judicial decisions.

    The Commission was able to make progress on multiple fronts in large part due to the fact that the diverse stakeholder communities were able to reach consensus. In particular, its recommendations have been adopted by state and local crime labs, and they have resulted in changes to both DOJ discovery practices and codes of professional conduct for those working in Federal DOJ laboratories.

    Given the Commission’s successful track record, we strongly recommend that the DOJ maintain an independent, transparent Federal Advisory Committee or similar forum tasked with the goals laid out in the notice. This entity should provide direct advice to both the Attorney General and Federal laboratories, as well as the Congress, and maintain: (1) a broad representation of forensic science stakeholders representing policy, practice, and research; (2) transparency and openness to public comment; (3) an advisory role to the DOJ; (4) partnerships with Federal science agencies, including, but not limited to, the National Institute of Standards and Technology; and (5) a public forum for discussing the needs of all forensic science disciplines and encouraging the development of strategic plans and research agendas to address those needs.

    Going forward, this entity should be tasked first with commissioning a thorough, independent, external review that (1) identifies which aspects of a forensic method are based on solid science that is acceptable not only to forensic practitioners but also to academic or other scientists; (2) identifies areas of forensic practice that are unreliable and/or invalid; and (3) sets forth a research agenda that explicitly states what issues in any particular forensic discipline require further study for improving practice based on sound science.

    The importance of independence from DOJ in this endeavor cannot be overstated. The DOJ must not be put in the position of using forensic tools in its role as a prosecutor in federal criminal litigation, while simultaneously determining the scientific value of those same tools. If DOJ, or any part thereof such as the Federal Bureau of Investigation, conducts these much-needed evaluations, it risks being perceived as lacking objectivity and credibility within the larger stakeholder community–from academicians to justices and defense attorneys and society at large. We recommend that the commissioned review be conducted by an external association, institution, or academic department(s) that is independent, which should reach beyond its borders to recruit highly qualified scientists, engineers, and statisticians. This effort need not begin from scratch, as the are are the beginnings of such analyses from prestigious organizations in circulation or published.

    Further, to improve the understanding of forensic science by legal practitioners, workshops, conferences or other venues for each type of practitioner–prosecutors, defense bar, and judges–should be convened separately to discuss the state of forensic science.These should be conducted independently of organizations involved directly in litigation to avoid conflicts of interest.

    The scientific community stands ready to work with the DOJ and other stakeholders to move forward on this critical national priority. Citizens of the United States must have confidence that the criminal justice system is fair and not stacked against any citizen. We count key experts across all disciplines of science among our hundreds of thousands of members, many of whom may be able to provide key insights that will advance the state of science in the service of justice.

  • 09 Jun 2017 1:50 PM | Anonymous member (Administrator)

    DOL Withdraws Informal Guidance on Joint Employment and Independent Contractor Status


    ISPLA is grateful to the employment law firm of FoxRothschild, LLP for providing the June 6, 2017 report below by Brett L. Myers, Esq. 


    In a return to pre-Obama standards, the U.S. Department of Labor has withdrawn its 2015 and 2016 informal guidance on joint employment and independent contractors.

    The action is significant because, during President Obama's eight years in office, the DOL and its state counterparts increased their efforts to investigate and identify companies that were allegedly improperly classifying individuals as independent contractors.

    Investigators from the DOL Wage & Hour Division typically appeared at an employer with limited notice and demanded to see payroll and time card records. More likely than not, the DOL investigator would conclude that all independent contractors retained by the employer had been misclassified, and should have been treated as nonexempt employees who were owed overtime and/or minimum wage.

    The DOL did not care if the affected individuals wanted to remain independent contractors. The employer could fight the determination, but on account of a memorandum of understanding between the DOL and the IRS, overtime and minimum wages were just the start of the employer’s problems. Improperly classifying independent contractors could result in penalties and interest on unpaid payroll taxes, and state agencies piling on seeking unpaid unemployment insurance taxes.

    The DOL’s increased enforcement efforts led to DOL’s abandoning the “right to control” test in favor of the “economic independence test.” The problem for employers was that the DOL’s new standard was less than clear. Employers were left without clear direction on how to set up independent contractor relationships.

    The DOL also loosened the standard for establishing joint employment in those situations where an individual provided services to two or more employers. Prior to the Obama administration’s increased enforcement efforts, the test for joint employment was whether the employer exercised direct control over the individual. During the Obama years, DOL adopted a new standard and found joint employment whenever an employer exercised indirect control over the individual. This shift resulted in joint employment in situations that previously would not have been joint employment.

    These two changes culminated in the DOL's 2015 and 2016 informal guidance on joint employment and independent contractors. And it is these two changes that the Trump administration’s DOL has now rescinded. Thus, the DOL is reinstating the direct control test for joint employment (as opposed to the more expansive indirect control standard) and right of control test for independent contractors (instead of the more liberal economic independence test).

    Bottom Line: The DOL and its state counterparts still will investigate the classification of workers as independent contractors, and whether one employer can be held liable as a joint employer for another employer's violations. However, the June 7, 2017 announcement of the rollback to the pre-Obama tests for joint employment and independent contractors means that it may now be easier to classify individuals as independent contractors, and it will be more difficult to hold one employer liable for the employment law violations of another employer.

    Bruce H. Hulme, CFE, BAI

    ISPLA Director of Government Affairs

  • 15 Mar 2017 6:40 PM | Anonymous member (Administrator)

    Note: Link to actual MOU between U.S and Canada is contained in posting below

    The Federal Trade Commission has signed a memorandum of understanding (MOU) with the Royal Canadian Mounted Police (RCMP) to strengthen enforcement cooperation on cross-border fraud matters.

    The MOU, signed by Acting FTC Chairman Maureen K. Ohlhausen, will enhance efforts by the FTC and RCMP to share information and engage in joint investigations. The FTC and the RCMP already cooperate on such issues as telemarketing fraud and providing redress for victims of cross-border frauds.

    “This MOU will strengthen our efforts to combat cross-border fraud and protect both U.S. and Canadian consumers,” FTC Acting Chairman Ohlhausen said. “This will expand our areas of cooperation and our ability to share information and conduct joint investigations.” 

    The RCMP plays a key role in Canadian law enforcement, acting as Canada’s national police force at the federal level while also providing policing services to eight of Canada’s provinces. The RCMP participates with the FTC in five Canada/U.S. regional partnerships focused on combatting cross-border marketing fraud, together with numerous other U.S. and Canadian enforcement agencies. 

    The MOU recognizes the long-standing partnership between the two agencies, which have worked together on joint cases, shared consumer complaints, and provided assistance with foreign asset recovery. This includes a 2016 case that netted $1.87 million in relief for victims of a debt relief scam and a case from 2015 involving cross-border telemarketing fraud that targeted seniors. The MOU will expand cooperation between the two agencies in enforcing each country’s respective consumer protection laws.

  • 09 Mar 2017 7:16 PM | Anonymous member (Administrator)

    (The report below is of importance  to New York Investigative and Security Professionals.)

    Back on April 4, 2016, New York Governor Andrew Cuomo signed into law one of the most comprehensive paid family leave laws in the country: the Paid Family Leave Law (PFLL). Under the PFLL, employers would  be required to provide eligible individuals with paid time off from work to attend to familial obligations, and upon full implementation, eligible individuals would be entitled to receive up to 12 weeks of paid time off from work per year. The PFLL is set to go into effect starting January 1, 2018, and be phased into full implementation by 2021. The benefits were to be phased into implementation under the following schedule:

    January 1, 2018 - Individuals will be entitled to take 8 weeks of paid leave and will receive 50 percent of their weekly pay with a benefit cap of 50 percent of the New York State average weekly pay (approximately $630 at this time)

    January 1, 2019 - Individuals will be entitled to take 10 weeks of paid leave and will receive 55 percent of their weekly pay with a benefit cap of 55 percent of the New York State average weekly pay.

    January 1, 2020 - Individuals will be entitled to take 10 weeks of paid leave and will receive 60 percent of their weekly pay with a benefit cap of 60 percent of the New York State average weekly pay.

    January 1, 2021 - Individuals will be entitled to take 12 weeks of paid leave and will receive 67 percent of their weekly pay with a benefit cap of 67 percent of the New York State average weekly pay.

    If an employee’s need for leave is foreseeable, the employee must provide the employer with 30 days’ notice. While an employee is out of work on family leave, the employer must maintain their health insurance benefits under the same terms and conditions as if they were working. Moreover, upon expiration of the leave, the employee is entitled to return to the same position that the employee held prior to family leave or a comparable position with comparable benefits, pay, and other terms and conditions of employment.

    However, the employee is not entitled to more favorable treatment than they would receive if the employee had not taken leave. Thus, for example, if the employee’s position would have been eliminated irrespective of family leave due to a reduction-in-force, the employee presumably would not be entitled reinstatement. In addition, employers are prohibited from retaliating against an employee for exercising their rights to take family leave.

    PFLL requires New York private-sector employers, regardless of size, to provide family leave to their employees after 26 consecutive weeks of employment. Employees may take paid family leave in order to: care for an infant, care for a family member with a serious health condition (but not an employee’s own serious health condition) or to relieve family pressures when someone is called to active military service.

    Under the law, paid family leave will be administered and paid for by New York’s Disability Benefits fund, and therefore employers will not be responsible for paying employees for family leave. The program will be funded through a payroll deduction of approximately $1 per week, and, when fully implemented, an employee on family leave will be entitled to up to 2/3 of the state’s average weekly salary as determined by the New York Department of Labor.

    Although employers will not have to pay employees directly for this family leave, there will be many nuances and rules for employers to learn in order to be in full compliance with the PFLL. Late last month, the New York Workers’ Compensation Board published proposed rules to provide guidance and clarity to employers, insurance carriers and employees regarding their rights and responsibilities in providing the new family leave coverage and the use of family leave benefits. The proposed rules, published February 22, are subject to a 45-day comment period before they can go into effect. New York state has also launched a website that discusses important aspects of the PFLL, and it created a hotline to answer any questions about the new law from employers and employees alike.

    Among the notable new regulations that have particular significance for employers:

    ·         Employers will be required to provide written policies, guidance or notifications to employees regarding leave under the PFLL. This written notice can be provided in an employee handbook. If an employer does not have an employee handbook, it will still be required to provide notice to the employees about their rights and obligations under this law, including how to file a PFLL claim. The Workers’ Compensation Board has also indicated that there will be a requirement to post notices at the place of employment, but it has not yet specified what form that will take.

    ·         Part-time employees will be eligible to receive pro-rata portions of family leave under the law.

    ·         An employer’s failure to provide paid family leave or to make applicable withholdings will expose the employer to costly penalties. Employers who fail to provide coverage shall be liable for a fine of up to 0.5% of weekly payroll during the time leave is not provided, and an additional fine of up to $500. Furthermore, if the employer does not continue to provide health coverage to an employee during the period of time the employee takes family leave, the employer will be responsible for any medical costs incurred by the employee during the period of the leave.

    ·         If the “qualifying event” that precipitates the employee’s request for leave is foreseeable (for example, the expected birth of a child), the employee will be required to provide the employer with at least 30 days’ notice before he or she takes leave. If they do not, the employer (or insurance carrier) may file a partial denial of the family leave claim for a period of up to 30 days from the date notice is provided by the employee. If the qualifying event or the need for leave is not foreseeable by the employee, such as an emergency medical condition, the employee will still be required to provide notice as soon as practicable.

    ·         Employees may be required to submit medical documentation from a health care provider if they take leave because of the serious health condition of a family member.

    ·         In order to request leave under the PFLL, employees will be required to complete a specific PFLL request form that the state will draft and make publicly available. Similar to New York state’s Notice of Pay form, employers may create and use their own forms so long as they contain all of the information that is required on the state’s form.

    ·         Any disputes related to claims under the PFLL, including employee eligibility, rates, claim denials and the appropriate length of time for employee leave, will be subject to arbitration through a process set forth under the new regulations. The Chairman of the Workers’ Compensation Board will appoint arbitrators, and any party who wishes to raise a dispute may do so by filing a request and filing fee with these arbitrators.

    The Workers’ Compensation Board regulations have also defined several important terms under the PFLL, including the “average weekly wage” to calculate benefit amounts, “part-time employees” to determine eligibility of employees to receive PFLL, and defining “serious health condition” with nearly the same definition as exists under the Federal Family and Medical Leave Act: an illness, injury, impairment or physical or mental condition that involves in-patient care in a hospital, hospice or residential health care facility; or continuing treatment or continuing supervision by a health care provider.

    Prudent employers should stay informed of new rules and regulations that are released between now and the January 1, 2018 implementation date of the PFLL in order to prepare for full compliance. Employers should audit and review payroll and leave policies in order to ensure they are prepared for implementation of the PFLL. Fox Rothschild will continue to provide updates and alerts on these issues.

    ISPLA is grateful to Fox Rothschild, LLP for providing this employment law alert. For more information about this alert, please contact Carolyn D. Richmond at 212.878.7983, Glenn S. Grindlinger at 212.905.2305, Zev Singer at 212.878.7928.

    Bruce Hulme, CFE, BAI

    ISPLA Director of Government Affairs

    Resource to Investigative & Security Professionals

    www.ISPLA.org

     

     

  • 12 Aug 2016 3:35 PM | Anonymous member (Administrator)

    I Spent My Summer Tracking Down Government Records About the Red Cross by Clifford Michel, ProPublica,  Aug. 11, 2016

    (As a grant recipient of the Knight-CUNYJ Summer Internship Program, Clifford Michel had the opportunity to spend the summer working at ProPublica while attending seminars at the CUNY Graduate School of Journalism. The goal of the program, which was created last year, is to help "build a stronger pipeline of academically excellent, digitally trained minority journalists" into American newsrooms. Below is Michel's account of his contributions to the launch of ProPublica's Red Cross Reporting Network. The information he provided regarding his search for records may also be insightful to investigative professionals who are members of ISPLA)

    __________________________________

    As the son of Haitian immigrants and a student at the College of Staten Island, I have been a close reader of ProPublica's dogged reporting on the Red Cross and its inadequate response to the earthquake in Haiti and to Hurricane Sandy. So when I found out that I would be spending my summer at ProPublica, helping to coordinate freedom of information requests concerning the charity, I was ecstatic. The task seemed daunting at first. My editor explained she was relying on me to file public records requests in more than a dozen states where major disasters occurred last year. Now that my internship is over, I am happy to say that I've come away with a deep understanding of FOI laws, sympathy for underfunded government agencies, and a few thousand pages of emails "regarding any reference to the Red Cross."

    Here are the most important things I learned:

    Always Insist That You Need All of It.

    Early on in my hunt for documents, I would almost feel guilty for asking the director of a local emergency management agency to mine their own email accounts for Red Cross-related emails. "Most of our communication is over the phone," one EMA director in Washington State told me. "Do you really need all of it?" He explained that it was the first time anyone had made a request to his office asking for emails. He was so confused that he even offered to do an interview with me in lieu of fulfilling the records request. By the time I got off the phone, I was convinced that I was burdening this county-level director for no good reason. My hunch seemed to be all but confirmed when I got a trove of seemingly useless emails from him a week later. But then, as I reviewed the documents, I noticed that an official from Washington's state-run emergency management agency was CC'ed frequently. I used that name to amend another records request I had submitted at the state level and didn't think much of it until I received a CD from the state two weeks later. It turned out that that very official coordinated directly with the Red Cross and other nonprofits. And those other nonprofits weren't thrilled about the Red Cross' efforts.

    Here are some highlights:

    "I have just contacted, via voice mail, the Department of Commerce and asked them to take Red Cross off the donation recommendation list until we can get some accountability and action."

    "With all of the funding being received by an organization that claims to be responsive, it appears that our community is at the bottom of the list for assistance."

    "Just one example is the Omak Shelter set up by Red Cross and an elderly man there for 3 days was unable to get a voucher for clean underwear."

    Real America Cares About Your Records Request

    Every reporter in the newsroom seemed to have a diary full of FOI nightmares to share whenever I told them what I was working on. But, despite a handful of tough cases, I found a tremendous amount of success. It was often the smaller counties, many without a designated records officer, that would get documents back to me the quickest. In a world where major government agencies can outright thwart a FOI request, it was refreshing to have so many local counties cooperate with my requests within a few short weeks.

    Real America May Not Know That You Have the Right to Make a Records Request

    While local counties processed my FOI requests fairly quickly, finding an individual who actually knew what I was trying to request was a challenge in and of itself. I followed a similar routine with almost every county. I'd call the county commissioner's office, who'd transfer to me the county clerk, who'd in turn transfer me to their emergency management agency. Then I'd have the pleasure of trying to explain to the agency's director why they'd have to get I.T. to dig through their work emails. One county clerk wrote, "Can you please give me the statute you are referencing for this request?" I responded with a brief explanation of her state's Open Records Act, to which she replied "Thank you!" Almost as if I had passed a test.

    When in Doubt, Find the Attorney

    A records officer in Missouri stopped replying to me after I pointed out that it seemed strange that their search for records came up completely empty. Especially since a virtually identical records request in another county showed the director, whose emails I was seeking, copied several times in emails clearly stating "regards the Red Cross." With radio silence from the records officer, I took my request to the county's attorney. One email outlining the state's statute and my request was enough to get the process moving along. A few days later, I finally heard back from the records officer. There was a misunderstanding and another search would be conducted, she told me. From that point on, county attorneys have been my go-to source for obtaining records in locales where I used to spend two days being transferred from office to office. It's awfully surprising how excited you can get from someone acknowledging that a "sunshine law," in fact, does exist. And it's even more exciting when that same person offers to explain it to the EMA director who had stopped returning your calls and emails.

    There's Value in Taking the Time

    Before ProPublica, I interned at Politico New York, a news outlet with as much fight as any New York City tabloid. If it moved and had anything to do with the nexus of New York politics, media and business, it was news. It was there that I learned how to turn an uninformative press conference into a story by asking just the right question. And that it's possible to do a write-up in the Bronx and Manhattan in the same day and still make it on time for your evening class in Staten Island. In almost every way, my experience at ProPublica has probably been the exact opposite, but it's been just as fun. I'd start off each day calling states and counties that had neglected to respond to me in the time specified by their public records laws, starting from the East Coast and shifting to the West Coast around noon.

    When the first files and packages began to come in, it was like piecing together a puzzle. I'd often have to expand the time frame I originally submitted, sharpen the language, or add additional officials 2014 all to the annoyance of some very testy records officers. Sometimes, it felt fruitless. I'd get back a request that had a Red Cross officer copied in one email and the rest would be an unnecessarily long PowerPoint presentation. But other requests peeled back layers that have yet to be explored. Look no further than the email I quoted earlier. The potential of other nonprofits feeling squeezed out due to the Red Cross's fundraising efforts and, at the same time, being overburdened by tasks they were never expecting to fill is absolutely newsworthy. I hope that ProPublica will find a home for those documents via our Red Cross Reporting Network, and I hope that many more journalists will sign up and report on the Red Cross's work in their own communities.

    Sometimes all you need to do is ask.

    ISPLA thanks ProPublica for permitting publication of this article.

    ProPublica is a Pulitzer Prize-winning investigative newsroom.  Sign up for their <a href="http://www.propublica.org/forms/newsletter_daily_email">newsletter</a></em>.</p><link rel="canonical" href="http://www.propublica.org/article/i-spent-my-summer-tracking-down-government-records-about-the-red-cross"><meta name="syndication-source" content="http://www.propublica.org/article/i-spent-my-summer-tracking-down-government-records-about-the-red-cross"><script type="text/javascript" src="http://pixel.propublica.org/pixel.js" async></script>

  • 08 Jan 2016 4:48 PM | Anonymous member (Administrator)

     ISPLA was recently provided a copy of a December 18, 2015 EducationAlert by the employment and labor law firm Fox Rothschild LLP entitled How To Unravel background Checks and What Steps To Take Next by attorneys Bonnie A. Young and Jeffrey T. Sultanik. Although the report concerns employee background investigations at Pennsylvania public schools, investigative and security professionals engaged in conducting similar background checks should review this report and make certain that they are familiar not only with the federal Fair Credit Reporting Act regarding background investigations but state and municipal laws and regulations that may exist in the locales where they conduct such inquiries.

    In Pennsylvania the following background checks are required under the School Code: PA State Police Criminal History, Department of Human Resources Child Abuse History; and Federal Criminal History (FBI) Report.

    By December 31, 2015, employees of Pennsylvania public school entities were required to have had updated background clearances. There are likely to be criminal history reports that raise questions about the ability of some employees to continue working in a public school setting. School officials need to know what steps to take once they have such information in hand.

    Here are some of the questions that are likely to arise:

    1.   Whether an employee can continue to work if they fail(ed) to submit mandatory clearances by the December 31, 2015, deadline?

    2.   What options does a public school entity have where an employee fails to submit clearances by the deadline, such as placing the employee on a paid or unpaid leave of absence, allowing the employee to utilize accrued but unused leave, suspending the employee (with or without pay) or possible termination?

    3.   Whether an employee’s criminal history impacts their eligibility for continuing employment with a public school entity?

    4.   What options does a public school entity have where an employee submits a criminal history report containing information that may impact their eligibility for continuing employment?

    5.   Whether an employee can be disciplined or terminated for failing to report criminal history information identified on the 2012 “Arrest/Conviction Report and Certification Form” (PDE 6004) where the information is no longer an automatic bar to continued employment under the School Code?

    6.   If a public school entity decides to terminate an employee based on the employee’s criminal history, what steps are required to ensure due process, compliance with the School Code and employee rights arising from any applicable collective bargaining agreement?

    7.   Whether a public school entity can provisionally continue an employee’s direct contact with students if all mandatory background clearances are not received by the December 31, 2015, deadline?

    8.   Whether a public school entity is required to report the arrest or conviction of an educator to the Professional Standards and Practices Commission?

    9.   Whether an employee can be disciplined or terminated for failing to disclose criminal history information on an employment application where the information is not an automatic bar to continued employment under the School Code?

    10.   How will disputes be resolved involving employees who fail to file timely background clearances or who are involved in the situations set forth in the previous questions in this document?

    Q. Can an employee continue to work if they fail to submit mandatory clearances by the December 31, 2015, deadline?

    A. The law is very specific that updated clearances must be on file with the public school entity before January 1, 2016. If an employee fails to provide any of the mandatory clearances, the employee may not have direct contact with students. As a result, public school entities are required to take immediate action with respect to this group of employees. This applies across the board to all employees who have direct contact with students.

    Q. What options does a public school entity have where an employee fails to submit clearances by the deadline, such as placing the employee on a paid or unpaid leave of absence, allowing the employee to utilize accrued but unused leave, suspending the employee (with or without pay) or possible termination?

    A. In all likelihood, each situation is going to present a unique set of facts and circumstances surrounding why an employee failed to submit clearances by the deadline. Some examples include: waiting until the last minute to apply for the necessary clearances, being out on a medical or sabbatical leave of absence, encountering problems with submitting fingerprints through COGENT or simply not understanding the requirements. We recommend conducting a Loudermill hearing (including field level union representation) to assess the individual employee’s situation. You may wish to consider the logistics of scheduling these hearings in advance and discuss the procedure with your legal counsel and union leadership.

    Following the Loudermill, the public school entity should work with legal counsel to determine whether to: 1) place the employee on a paid or unpaid leave of absence while clearances are pending; 2) allow the employee to utilize accrued but unused leave that is permitted under the applicable contract, employment policy or handbook provision; 3) suspend the employee (with or without pay) while clearances are pending; or 4) take steps to terminate the employee if the employee ultimately refuses to submit clearances.

    (Note: Additional information about Loudermill hearings will be discussed below. Importantly, a public school entity may not suspend an employee without pay or unilaterally place an employee on an unpaid leave without conducting some form of Loudermill proceeding. If an employee is being evasive about scheduling the Loudermill, please contact legal counsel to discuss your options. Finally, an employee may voluntarily consent to being placed on an unpaid leave of absence.)

    Q. How do I determine whether an employee’s criminal history impacts their eligibility for continuing employment with a public school entity?

    A. We recommend conducting a Loudermill hearing (including field level union representation) to assess the individual employee’s situation. An employee may be placed on a paid leave, suspended with pay or permitted to use accrued but unused leave that is permitted under the applicable contract, employment policy or handbook provision while you review the situation and hold the Loudermill.

    The public school entity should review the specific charges involved and the grading of the offenses to determine the impact the arrest and/or conviction has on the employee under Section 111 of the School Code. We recommend reviewing the charges with your legal counsel because the nature of the offense and whether it is graded as a summary offense, misdemeanor or felony will have a significant impact on whether the employee remains eligible for continuing employment with a public school entity.

    Other important information to gather at the Loudermill hearing may include: 1) when and where the arrest and/or conviction took place; 2) the employee’s understanding of how the offense was disposed of, e.g., were the charges dismissed? Did the employee participate in ARD? Did the employee plead guilty? 3) What is the employee’s explanation for the arrest and/or conviction? and 4) Assuming an obligation to report, what is the employee’s explanation for failing to report the arrest or conviction to the public school entity?

    Following the Loudermill, the public school entity should work with legal counsel to determine whether the employee was obligated to report the arrest or conviction pursuant to Section 111 of the School Code and, if the employee was convicted of the charges, whether the conviction bars the employee from working for a public school entity.

    Q. What options does a public school entity have where an employee submits a criminal history report containing information which may impact their eligibility for continuing employment?

    A. Following the investigation described above, the public school entity may: 1) determine that the criminal history does not impact the employee’s eligibility for continued employment and find that no employment action is required; 2) determine that the employee willfully failed to report an arrest or conviction that does not bar continued employment and issue progressive discipline (such as a letter of reprimand, suspending the employee (with or without pay) or moving for termination) for failing to report the offense; or 3) determine that the employee willfully failed to report an offense which bars employment with a public school entity and initiate steps to terminate.

    The public school entity should review this determination with legal counsel in order to adequately analyze the constitutional impact of barring an individual from current or prospective employment based on the employment restrictions contained in Section 111 of the School Code. PDE has published guidance to assist school administrators in applying the employment bans to current and prospective employees. Importantly, PDE directs public school entities to perform this analysis on a case-by-case basis with the advice of legal counsel.

    In deciding whether it would be unconstitutional to bar an individual from current or prospective employment, school administrators should consider multiple factors including: 1) the nature of the offense as it relates to student safety; 2) the relationship of the offense to the employee’s fitness to perform the job; 3) how much time has passed since the offense occurred; 4) the employee’s current position and job performance; 5) whether the offense was an isolated incident; 6) presence or absence of subsequent criminal history; 7) whether the offense occurred on school property; and 8) any evidence of rehabilitation provided by the employee since the conviction.

    PDE also directs school administrators to document the process used, along with their findings and analysis of whether it is constitutional to apply the employment ban to the current or prospective employee. If a public school entity determines that it would be unconstitutional to ban a particular individual from employment, the decision must be supported by a written opinion from legal counsel.

    (Note: PDE has issued detailed guidance on the considerations involved in applying Section 111 in a question and answer format entitled “PDE Guidance on Recent Commonwealth Court Rulings Concerning Act 24 of 2011 (Section 111(e) of the School Code)” that can be found on the PDE website.)

    Q. Can an employee be disciplined or terminated for failing to report criminal history information identified on the 2012 “Arrest/Conviction Report and Certification Form” (PDE 6004) where the information is no longer an automatic bar to continued employment under the School Code?

    A. Yes. Section 111 of the School Code states that a public school employee can be disciplined up to and including termination for willfully failing to report criminal history. We recommend conducting a Loudermill hearing (including field level union representation) to assess the individual employee’s situation.

    The public school entity will need to review the specific charge involved and the grading of the offense to determine the impact (if any) the arrest and/or conviction has on the employee under Section 111 of the School Code.

    Following the Loudermill, the public school entity should work with legal counsel to determine whether the employee willfully failed to report the arrest or conviction to the public school entity on the PDE 6004 form and, where appropriate, issue progressive discipline (such as a letter of reprimand, suspending the employee (with or without pay) or moving for termination) for failing to report the information on the PDE 6004.

    Q. If a public school entity decides to terminate an employee based on the employee’s criminal history, what steps are required to ensure due process, compliance with the School Code and employee rights arising from any applicable collective bargaining agreement?

    A. A public school entity must follow all mandatory requirements of due process established by Pennsylvania law when terminating school employees for information contained in a criminal history report, for failing to disclose criminal history information on the PDE 6004 form or for failing to disclose criminal history on an employment application.

    When terminating teachers and other certified employees, public school entities are required to follow the procedures for terminating professional employees found in Section 1122 of the School Code. All other school employees are covered by the termination procedures found in Section 514.

    The public school entity should work with legal counsel to determine the appropriate process for terminating the employee and to ensure compliance with the School Code and employee rights arising from any applicable collective bargaining agreement.

    (Note: Section 514 does not apply to Intermediate Units and Vocational-Technical Schools.)

    Q. Can a public school entity provisionally continue an employee’s direct contact with students if all mandatory background clearances are not received by the December 31, 2015, deadline?

    A. Under Section 111 of the School Code, provisional employment is only authorized for “applicants.” We believe the term “applicant” here will be interpreted by a court to mean only a prospective employee and not a current employee with lapsed background clearances. However, while strict construction of the statute does not really allow for the use of “provisional employment” under these circumstances, PDE has indicated (informally) that it will likely permit it on a case-by-case basis.

    With that said, the requirements for provisional employment for a single period, not to exceed 90 days, include: (1) all applications for clearances are submitted; (2) no knowledge by the administration of information that would disqualify the applicant from employment; (3) a sworn statement that the applicant is not disqualified from employment; and (4) the applicant is not permitted to work alone with students and a cleared person must be in the immediate vicinity.

    Please be advised that we view PDE’s guidance to be at odds with the statutory language in Section 111 and if a public school entity elects to follow PDE’s guidance, it will be subject to challenge in the courts. Further, it may be difficult to justify why a public school entity is permitting an employee without updated clearances on file to have direct contact with students.

    Q. In the context of reviewing an employee’s criminal history, when is the public school entity required to report the arrest or conviction of an educator to the Professional Standards and Practices Commission (PSPC)?

    A. Public school entities are required to report any certified employee who is arrested or convicted of any crime that is graded a misdemeanor or felony to the PSPC within 15 days of discovering the offense. Arrests must be reported regardless of disposition and reports must be made regardless of the date of the offense. The public school entity should work with legal counsel to review the specific charge involved and the grading of the offense to determine whether it is obligated to report the arrest or conviction to the PSPC.

    (Note: Basic Education Circular 24 P.S. § 2070.9a entitled “Educator Misconduct – School Entity Mandatory Report Procedures and Form” provides detailed guidance on the reporting procedures that should be used by the public school entity including the School Entity Mandatory Report Form.)

    Q. Can an employee be disciplined or terminated for failing to disclose criminal history information on an employment application where the information is not an automatic bar to continued employment under the School Code?

    A. Yes. We recommend conducting a Loudermill hearing (including field level union representation) to assess the individual employee’s situation.

    The public school entity should review the specific charge involved and the grading of the offense to determine the impact (if any) the arrest and/or conviction has on the employee under Section 111 of the School Code.

    Following the Loudermill, the public school entity should assess the situation with legal counsel and, if necessary, institute progressive discipline (such as a letter of reprimand, suspending the employee (with or without pay) or moving for termination) for failing to disclose the criminal history information on the employment application.

    (Note: The public school entity may also be required report the criminal history of a certified employee to the PSPC consistent with the information described above.)

    Q. How will disputes be resolved involving employees who fail to file timely background clearances or who are involved in the situations set forth in the previous questions in this document?

    A. In our view, PDE will not be the ultimate decision-maker for these matters. We have received good word that the Pennsylvania State Education Association intends to challenge all adverse employment actions that result from disciplinary actions taken against their bargaining unit members through the arbitration process. This means that labor arbitrators will ultimately decide the propriety of the public school entity’s action. Arbitrators almost universally apply progressive discipline and often invoke implied equitable principles when reviewing employer discipline. This is why we are recommending a fact-specific and case-by-case approach.

    For more information about this alert, please contact Bonnie A. Young at 215.299.2076 or byoung@foxrothschild.com, Jeffrey T. Sultanik at 610.397.6515 or jsultanik@foxrothschild.com or any member of the firm’s Education Practice

  • 19 Nov 2015 7:39 PM | Anonymous member (Administrator)

    Investigative & Security Professionals:

    During November 10-13 in New Orleans I had the pleasure as the sole elected board member representing the private investigative profession's interests to attend the annual meeting and conference "Regulation in the Eye of the Storm" of  the International Association of Security and Investigative Regulators.

    Additionally, I was a moderator and presenter addressing the subjects of Unmanned Aerial Systems or UAS (commonly called Drones) and the current legal/licensing status of Trustify, formerly known as FlimFlam, a company claiming to be nothing more than an App based electronic referral platform connecting consumers with vetted and licensed private investigators. More on Trustify in a subsequent piece. This article will concentrate on the commercial use of drones by investigative and security professionals. The issues surrounding the use of drones and the emergence of a "Uber PI" type business plans could be viewed as disrupters in our profession.

    IASIR is an association representing state and provincial regulators from the U.S., Canada and the United Arab Emirates having governmental jurisdiction over private investigators and security, alarm and armored car companies. ISPLA board members Jim Olsen and Nicole Bocra Gray were also speakers on "When Disaster Strikes: The Investigator's Role" and "Using Social Media."

    The Federal Aviation Administration has deemed commercial use of UAS or drones without first obtaining a special waiver under Section 333 of the FAA Modernization and Reform Act of 2012 (FAA Act) to be illegal and subject to a $10,000 fine per violation. However, for recreational use of drones, Section 336 of the FAA Act has established that as long as the drone is "operated in accordance with community based guidelines, weighs 55lbs or less, does not interfere with manned aircraft, and avoids flying within five miles of an airport unless certain notice is given, then such use is legal.

    Thus far, at least one licensed private investigator has been granted a waiver from the FAA to operate a drone for commercial purposes. However, most waivers have been granted to the motion picture and TV film industry, real estate businesses, aerial photographers, agriculture and forestry purposes and pipeline inspection firms. 

    Pilots have reported a thousand incidents of near-misses with drones. Drones have hindered firefighters and rescue operations; a drone operator was killed in a New York City park when his UAS landed on his head and the propellers removed the top of his skull; and a Moslem man in Connecticut pled guilty to an attempted act of terrorism in planning a drone attack with explosives against that state's capitol building in Hartford and undertaking a similar plan against Harvard University.  

    UAS sales, according to the Consumer Electronics Association are estimated to top 700,000 for recreational drones alone, a 63 percent increase over last year. On October 18, 2015, the FAA announced that it will require all drones, commercial and recreational, to be registered. Rulemaking  is presently in the works on this with recommendations scheduled to be completed by November 20, 2015. The FAA is also working to enact additional rules with regard to commercial drone use to be finalized in June 2016.

    One should keep in mind that there are also state laws relative to privacy issues and trespass on property. Intrusion upon secion and publication of private facts are tort causes of action with respect to protecting privacy. Thus far forty-five states have considered 165 bills regarding drones in 2015.

    On November 19, 2015  House Committee on Energy and Commerce  held a hearing entitled "The Disrupter Series: The Fast-Evolving Uses and Economic Impacts of Drones." In an opening statement one House member estimated that one million drones are expected to be sold in the Christmas season this year. Below are links to testimony taken at the hearing, if interested.

    Opening Statements: 

    Commerce, Manufacturing, and Trade Subcommittee Chairman Michael C. Burgess (M.D.)

    Witnesses: 

    Joshua M. Walden

    • Senior Vice President
    • General Manager, New Technology Group
    • Intel Corporation
    • Witness Testimony (CV)

    John Villasenor

    Brian Wynne

    Margot Kaminski

    - See more at: The Disrupter Series: The Fast-Evolving Uses and Economic Impacts of Drones | Energy & Commerce Committee

    We will continue to keep our colleagues apprised of further developments on UAS regulations of the FAA and proposed federal and state legislation affecting such use by investigative and security professionals. Please consider donating to ISPLA to assist us in our continuing mission at:

    http://ispla.org/donationform

    Thank you for supporting ISPLA.

    Bruce H. Hulme, CFE, BAI

    ISPLA Director of Government Affairs

    Resource to Investigative and Security Professionals  


     


     

  • 20 Oct 2015 2:40 PM | Anonymous member (Administrator)

    Madoff Trustee Requests Release of $1.5 Billion from Customer Fund

    Supreme Court Decision Permits Request for Court Approval of Sixth Interim Pro Rata Distribution to Bring Aggregate Customer Payout in Global Madoff Liquidation to Approximately $9.13 Billion

    Nearly 57 Percent of Losses Will Be Returned to Customers

    Oct 20, 2015 - NEW YORK & WASHINGTON--(Business Wire)--Press release from the offices of Irving H. Picard, SIPA Trustee for the liquidation of Bernard L. Madoff Investment Securities LLC (BLMIS), and Stephen P. Harbeck, President and Chief Executive Officer of the Securities Investor Protection Corporation (SIPC)

    Irving H. Picard, Securities Investor Protection Act (SIPA) Trustee for the liquidation of Bernard L. Madoff Investment Securities LLC (BLMIS), filed a supplemental motion today in the United States Bankruptcy Court for the Southern District of New York seeking approval for an allocation of recoveries to the BLMIS Customer Fund and an authorization for a sixth pro rata interim distribution from the Customer Fund to BLMIS customers with allowed claims. A hearing has been scheduled for Wednesday, November 18, 2015 at 10:00 a.m.

    Plans for a sixth interim pro rata distribution may now proceed after the Supreme Court’s decision on October 5, 2015 not to review lower court decisions regarding the applicability of so-called “time-based damages” in the ongoing liquidation of the Madoff firm. The Court’s action affirmed the SIPA Trustee’s position on this issue. In the motion, the SIPA Trustee seeks the release of funds that include reserves held under a September 2012 Bankruptcy Court order and more than $345 million in settlements and new recoveries that have been secured since the fifth distribution, which commenced in February 2015.

    If the motion is approved, the SIPA Trustee will allocate $1.5 billion, with $1.18 billion available for immediate distribution to customers with allowed claims and approximately $320 million held in reserve for claims that are deemed determined pending the resolution of litigation, as well as other issues. This will bring the amount distributed to eligible BLMIS customers to approximately $9.13 billion, which includes more than $827 million in advances committed by the Securities Investor Protection Corporation (SIPC).

    Stephen P. Harbeck, President and CEO of SIPC, said, “The courts have upheld the Trustee’s and SIPC’s application of SIPA. The Supreme Court’s decision not to review the Second Circuit’s decision allows Irving Picard to move forward with the distribution as soon as possible, while his global legal team continues to pursue additional, significant recoveries for BLMIS customers.

    “Recoveries for the BLMIS Customer Fund now total nearly $11 billion,” continued Mr. Harbeck. “That is much more than anyone could have expected at the start of the case in 2008. The legal strategy, and the execution of that strategy by the SIPA Trustee and his counsel, led by David J. Sheehan, will maximize the return to Madoff’s customers. The result here, fully funded by SIPC at no cost to customers, shows that the Securities Investor Protection Act functions as Congress intended. I congratulate the SIPA Trustee and his counsel as they continue to make distributions and increase the return to the victims of this enormous theft.”

    The sixth pro rata interim distribution will result in the return of 8.186 percent of the allowed claim amount for each individual account, unless the allowed claim has been fully satisfied. The average payment for an allowed claim issued in the sixth distribution is $1,110,423.34. The smallest payment totals $1,286.84 and the largest payment is $200,367,708.98.

    Currently, the SIPA Trustee has allowed 2,564 claims related to 2,227 BLMIS accounts. Of these accounts, 1,264 accounts with allowed claims totaling $1,161,193.87 or less – or more than 56 percent – will be fully satisfied following the sixth interim distribution. The sixth interim distribution, when combined with the prior interim distributions, will satisfy up to 56.988 percent of each customer’s allowed claim unless the account is fully satisfied. In addition, SIPC will be reimbursed for its advances to accounts that the sixth interim distribution fully satisfies.

    As of October 20, 2015, the SIPA Trustee has recovered or reached agreements to recover approximately $10.9 billion since his appointment in December 2008. These outcomes exceed similar efforts related to prior Ponzi scheme recoveries, in terms of dollars and percentage of stolen funds recovered.

    Ultimately, 100 percent of the SIPA Trustee’s recoveries will be allocated to the Customer Fund for distribution to BLMIS customers with allowed claims. Prior distributions as of October 20, 2015 are as follows:

    ·         The first pro rata interim distribution, which commenced on October 5, 2011, has distributed approximately $675.3 million, representing 4.602 percent of the allowed claim amount of each individual account, unless the claim is fully satisfied.

    ·         The second pro rata interim distribution, which commenced on September 19, 2012, has distributed approximately $4.906 billion, representing 33.556 percent of the allowed claim amount of each individual account, unless the claim is fully satisfied.

    ·         The third pro rata interim distribution, which commenced on March 29, 2013, has distributed approximately $686.1 million, representing 4.721 percent of the allowed claim amount of each individual account, unless the claim is fully satisfied.

    ·         The fourth pro rata interim distribution, which commenced on May 5, 2014, has distributed approximately $461.4 million, representing 3.180 percent of each individual account, unless the claim is fully satisfied.

    ·         The fifth pro rata interim distribution, which commenced on February 6, 2015, has distributed approximately $397.5 million, representing 2.743 percent of each individual account, unless the claim is fully satisfied.

    There are 109 deemed determined claims still subject to litigation. Once litigation is resolved or settlements reached, these claims may be allowed and would therefore become eligible for all pro rata distributions to date. For that potential scenario, as of October 20, 2015, the SIPA Trustee has reserved approximately $1.706 billion. The ultimate amount of additional allowed claims depends on the outcome of litigation or negotiation and could add billions of dollars to the total amount of allowed claims.

    All administrative costs of the SIPA liquidation of Bernard L. Madoff Investment Securities LLC and its global recovery efforts, which make the distributions possible, are funded by SIPC.

    Upon approval, record holders of allowed claims as of November 18, 2015 will be eligible to receive payments from the sixth interim distribution.

    The supplemental Sixth Customer Fund Allocation and Distribution Motion can be found on the United States Bankruptcy Court’s website at http://www.nysb.uscourts.gov/; Bankr. S.D.N.Y., No. 08-01789 (SMB). It can also be found on the SIPA Trustee’s website along with more information on the BLMIS liquidation at: www.madofftrustee.com.

    Messrs. Harbeck, Picard and Sheehan would like to thank Seanna Brown and Heather Wlodek of BakerHostetler, who worked on the sixth pro rata interim distribution and its related filings, as well as the legal firms of BakerHostetler and Windels Marx, and all of the attorneys and professionals whose work has led to the distribution. They would also like to thank Vineet Sehgal and his colleagues at AlixPartners, as well as Josephine Wang, Kevin Bell and their colleagues at SIPC, for their ongoing work and participation in the Madoff Recovery Initiative distributions.

    Bruce H. Hulme, CFE, BAI - ISPLA Director of Government

  • 10 Sep 2015 11:54 AM | Anonymous member (Administrator)

    BMW to Pay $1.6 Million and Offer Jobs to Settle Federal Race Discrimination Lawsuit

    Company's Criminal Background Policy Disproportionately Affected African-American Logistics Workers, EEOC Charged

    The U.S. District Court for the District of South Carolina on September 8 entered a consent decree ordering BMW Manufacturing Co., LLC (BMW) to pay $1.6 million and provide job opportunities to alleged victims of race discrimination as part of the resolution of a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The lawsuit, details about which have been previously reported by ISPLA, had been filed by the EEOC on June 11, 2013. The suit alleged that BMW excluded African-American logistics workers from employment at a disproportionate rate when the company's new logistics contractor applied BMW's criminal conviction records guidelines to incumbent logistics employees. 

    More specifically, the complaint alleged that when BMW switched contractors handling the company's logistics in 2008 at its production facility in Spartanburg, S.C., it required the new contractor to perform a criminal background screen on all existing logistics employees who re-applied to continue working in their positions at BMW. At that time, BMW's criminal conviction records guidelines excluded from employment all persons with convictions in certain categories of crime, regardless of how long ago the employee had been convicted or whether the conviction was for a misdemeanor or felony. According to the complaint, after the criminal background checks were performed, BMW learned that approximately 100 incumbent logistics workers at the facility, including employees who had worked at there for several years, did not pass the screen. EEOC alleged that 80 percent of the incumbent workers disqualified from employment as a result of applying BMW's guidelines were black. 

    Following an investigation, EEOC filed suit alleging that blacks were disproportionately disqualified from employment as a result of the criminal conviction records guidelines. EEOC sought relief for 56 African-Americans who were discharged. BMW has since voluntarily changed its guidelines.  

    BMW will pay a total of $1.6 million to resolve the litigation and two pending charges related to the company's previous criminal conviction records guidelines that had been filed with EEOC. In addition to monetary relief, BMW will offer employment opportunities to the discharged workers in the suit and up to 90 African-American applicants who BMW's contractor refused to hire based on BMW's previous conviction records guidelines. BMW also will provide training on using criminal history screening in a manner consistent with Title VII.  Additionally, BMW will be subject to reporting and monitoring requirements for the term of the consent decree.

    According to the EEOC, after learning of convictions, BMW responded by denying access to its facilities by anyone who had been in trouble with the law in the past.  "Claimants were denied access to the BMW facility without any individualized assessment of the nature and gravity of their criminal offenses, the ages of the convictions, or the nature of their respective positions," the complaint said. "Moreover, they were denied plant access without any assessment or consideration of the fact that many had been workings at the BMW facility for several years without incident for UTi and prior logistics service providers."

    Of those denied access to the plant because they had a criminal record, 80 percent were black and 18 percent white.  The EEOC characterized those numbers as "statistically significant."

    "EEOC has been clear that while a company may choose to use criminal history as a screening device in employment, Title VII requires that when a criminal background screen results in the disproportionate exclusion of African-Americans from job opportunities, the employer must evaluate whether the policy is job related and consistent with a business necessity," said P. David Lopez, EEOC's General Counsel. 

    "We are pleased with BMW's agreement to resolve this disputed matter by providing both monetary relief and employment opportunities to the logistic workers who lost their jobs at the facility," said Lynette Barnes, regional attorney for the Charlotte District Office. "We commend BMW for re-evaluating its criminal conviction records guidelines that resulted in the discharge of these workers." 

    EEOC enforces federal laws against employment discrimination. The Commission issued its first written policy guidance regarding the use of arrest and conviction records in employment in the 1980s. The Commission has since considered this matter in 2008 and updated its guidance in 2012. This is one of the first cases involving the use of arrest and conviction records that EEOC has filed since the Commission issued the updated guidance.

    Bruce Hulme, ISPLA Director of Government Affairs

    Resource to Investigative and Security Professionals

    www.ISPLA.org

     

<< First  < Prev   1   2   3   4   5   ...   Next >  Last >> 

                                                         ISPLA

Powered by Wild Apricot Membership Software