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Update on EEOC Efforts to Curb Employer Use of Criminal Background Checks – EEOC Suffers a Major Defeat

When the EEOC released its much criticized and confusing April 2012 Enforcement Guidance on employer use of arrest and conviction records in employment, and then effectively stated its intent to use the Guidance to aggressively go after employers for their use of employee background checks as alleged violation of Title VII of the Civil Rights Act of 1964, as observed by the Federal Judge in the “Freeman” case discussed below, “the EEOC…placed many employers in the “Hobson’s choice” of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers.”


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Fully Functioning NLRB Likely to Be Up and Running By August: Bad News for Employers

In January, the D.C. federal appeals court ruled in the case of NLRB v. Noel Canning that President Obama’s January 2012 recess appointments to the NLRB of Democrats Sharon Block and Richard Griffin and Republican Terence Flynn exceeded the recess appointment power granted to President’s in the Constitution and thus the appointments were invalid. Therefore, the NLRB decision against Noel Canning was made with just two valid members of the five member Board. As three valid Board members are the minimum needed for a quorum to take Board actions and make decisions, then the decision against Noel Canning was too invalid. Since the D.C. Court ruling, in two other similar challenges to NLRB decisions, two other federal appellate courts have also ruled the NLRB recess appointments were unconstitutional and thus NLRB decisions in those cases were invalid. The Supreme Court will take up the Noel Canning case next term and there is a strong possibility that the Court will agree with the Noel decision and thus invalidate the Board’s decisions/rules/appointments requiring a quorum that the Board has made since January 2012. The specter of the mass annulment of Board actions/decisions, despite statements from the Obama Administration and the NLRB that the Board would not be deterred in its mission, has indeed, much to chagrin of Big Labor, caused the Board to adopt a “go slow” approach, especially in area of issuing regulations.

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Mandatory Employer Use of E-Verify A Pillar of Comprehensive Immigration Reform

As expected, despite the protests from civil libertarians and privacy advocates, the much anticipated “comprehensive immigration reform” bill (S. 744) introduced earlier this week by the Senate “Gang of Eight” will require all employers — on a phased-in basis based on employee size — to use the E-Verify system to determine whether a new hire is eligible to work in the United States.(See Section 3101).

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NASCO Contract Security D.C. Summit Brief

On June 12 and 13 (starting with a evening cocktail reception on June 11) NASCO will be holding its 8th Annual Contract Security D.C. Summit. The NASCO Summit is the premier national event focused on the intersection of public policy and the business of contract security. The agenda is packed with sessions and speakers that will address national policy issues, legal issues, labor issues, federal contracting issues, and federal and state legislative issues of interest to contract security employers.


Speakers include, Rep. Michael McCaul, Chairman of the House Homeland Security Committee; Jeff Kessler of Imperial Capital, the leading financial analyst for the security industry; Theane Evangelis Kapur of Gibson, Dunn and Crutcher, who co-wrote the contract security industry’s amicus brief for the upcoming pivotal employee class action case before the California Supreme Court (Duran v. U.S. Bank); various officials from the Federal Protective Service and other DHS agencies, Labor/Employment policy and Political experts from the U.S. Chamber of Commerce; and more. All events including the sessions, two cocktail receptions and a dinner are within a block of each other right off Capitol Hill. Click here for a registration form.

For more information on this topic please email Jeff DiDomenico at Valiant or Click Here for a free assessment.


DOL to Finally Release Rule Curtailing “Advice” Exemption to “Persuader” Activities Reporting

In June 2011, the U.S. Department of Labor (DOL) proposed a new Rule that would significantly narrow the DOL’s interpretation of the “advice” exemption of the Labor-Management Reporting and Disclosure Act (LMRDA). In a December 2012 Report filed by DOL to the federal Office of Information and Regulatory Affairs, DOL stated that it planned to take issue with the Final Rule in April 2013.

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Update on Efforts in Congress to Provide for Universal FBI Background Checks for Security Officers

For the past several years, NASCO, and individual NASCO members, have worked to expand the ability of employers to obtain FBI checks on security officers as authorized by the 2004 Private Security Officer Employment Authorization Act (PSOEAA). An obstacle to obtaining expanded FBI checks under the PSOEAA is its requirement that the authorized FBI check to be obtained from a state agency.

While NASCO has worked with several states (Colorado, Kentucky, Missouri) to set up PSOEAA FBI check programs, and NASCO also worked with Minnesota to set up a program that conducts PSOEAA checks on officers in states with no statewide security officer regulations, other states do not have the resources or desire to provide, or expand current, security officer FBI background checks.

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4 Non-Federal Contracting Related Issues of Interest to the Contract Security Industry in the 113th Congress

a. Liability Immunity for Reporting Suspicious Activity

During the last Congress, legislation (the “See Something Say Something Act”) was introduced in both the House and Senate that expands the current legal immunity for “good faith” reporting of suspicious activity (that could be related to an act of terrorism). Currently such immunity is only available in the passenger transportation sector, and the bill would expand it to all reporting of such suspicious activity to authorities.

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New Freedonia Group Study Predicts 5.2% Annual Growth in Demand for Contracted Security Services

In October, the market research firm the Freedonia Group released a study titled “Private Security Services to 2016.” The 413 page study (with a price tag of $5,100.00) predicts that:

“US demand for private contracted security services is projected to increase 5.2 percent annually to $63.8 billion in 2016. The market will be supported by a high perceived risk of crime (from conventional violent and property crimes to white collar crimes and terrorism) and a concern that public safety officials are overburdened. The outsourcing of security activities to contracted firms, instead of relying on in-house security, will support demand. The privatization of some public safety operations, such as guarding government facilities and correctional facilities management, will also boost gains.”
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2012 Federal Election Analysis and Implications for the Security Industry

Overview
With President Obama handily defeating Mitt Romney Tuesday, and the Democrats amazingly adding two seats to their Senate majority (now 55-45), it was not a good day for the business community (unless you like burdensome regulation and anti-business/anti-employer policies). And, while the GOP “firewall” in the House remains intact (the GOP is likely to lose a net of 6-7 seats from its now 24 seat majority); unfortunately, one of the lost seats could be that of security industry friend Dan Lungren (CA-7), Chairman of the House Homeland Security Subcommittee on Cybersecurity, Infrastructure Protection, and Security Technologies. In Tuesday’s voting, Lungren finished just 184 votes behind his Democratic challenger. However, Lungren’s campaign reports that there are approximately 50,000 or more early, absentee and provisional ballots that have yet to be counted, and it could take at a least a week to get a final tally.

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Proposed FAR Rule Will Require Contractor Cybersecurity for Government Information

On August 24, 2012, the Defense Department, General Services Administration and NASA issued a proposed Rule requiring all federal contractors to safeguard contractor information systems containing information provided by or generated for the government. (Federal Acquisition Regulation, Basic Safeguarding of Contractor Information Systems, 77 Fed. Reg. 51496 (Aug. 24, 2012). The deadline to submit comments on the Rule is October 23, 2012.
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