The Massachusetts Offices of Consumer Affairs and Business Regulations (OCABR) recently passed regulations that went into effect March 1, 2010 and are aimed at safeguarding the private in rank of Massachusetts residents by requiring a business to have a Written In rank Security Program (WISP) to protect private in rank.

The ‘STANDARDS FOR THE PROTECTION OF Private In rank OF RESIDENTS OF THE COMMONWEALTH’ cover any business that “receives, stores, maintains, processes, or otherwise has access to private in rank in connection with the provision of excellent or air force or in connection with employment.”

The rules defined private in rank as a Massachusetts’s resident’s name combined with a social security number, drivers ticket or disorder issued ID card, or a fiscal account.

The regulations also apply to third parties and demand that there be contracts to ensure that the regulations are implemented and maintained, although the contracts did not need to be updated before March 1, 2012. It appears that Massachusetts takes the position that the rules apply to out of disorder firms that handles private in rank as well.

A business that is regulated by these rules must have and implement a written comprehensive in rank security policy, or WISP. The rules do not specify exact policies but provides minimum requirements and indicates a business should pocket certain a number of factors into account such as the kind of records it maintains and the risk of identity theft.

Some of the things a business must do includes a review of foreseeable internal and external risks, evaluation and improvement of safeguards, policies for employee access outside of the business, implementing security measures such as password control and up to date firewall, employee training, ensuring that terminated employees cannot access confidential data as well as disciplinary measures for violations of the regulations.

This new law has been described as the “toughest in the nation,” and should go a long ways toward improving privacy and data security and fighting identity theft. A text of the new regulations can be viewed at: http://www.mass.gov/Eoca/docs/idtheft/201CMR1700reg.pdf.

With these strict in rank security regulations now in effect in Massachusetts, employers need to ensure that their background screening firms are in compliance, Employment Screening Resources (ESR) – a leading background check provider – maintains compliance with the new private in rank protection in Massachusetts. For extra in rank on privacy and data security as it relates to background checks, contact Employment Screening Resoruces at http://www.ESRcheck.com.

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A text of the new regulations can be viewed at: http://www.mass.gov/Eoca/docs/idtheft/201CMR1700reg.pdf

The plaintiff in the case was seeking employment at a college to teach courses on psychology and domestic violence. During her background check, the court research firm made a clerical error that falsely labeled the plaintiff ironically as a person who was convicted of assault and family violence in Texas. The case was before the court on motions for summary discrimination, which is a course of action where a party asserts that even if the prove was viewed in a light most favorable to the other party, there is insufficient prove as a matter of law for a jury to find against them.

The proof showed that the college utilized the air force of a background screening firm (called a Consumer Reporting Agency or “CRA”) to conduct a background check, including a check for criminal records, and the CRA in turn used other researchers. Due to simple creature error, the court researcher made a clerical mistake, resulting in mixing up someone else’s criminal records with the plaintiff’s, who in fact had no record.

Three days later the Plaintiff learned that the background report was negative and reported a criminal conviction. The plaintiff immediately contacted the college and the CRA. The screening report was promptly corrected and the plaintiff received a “clear” report. The college indicated they were ready to proceed with the hire.

But, the plaintiff was still apparently miserable even though the report was quickly corrected and she was going to get the job. In a conversation with college personnel, the consumer talked about how the college had “place her through hell, they had place her family through stress, and that (the college) had tarnished her reputation.” The plaintiff also indicated that she had interviewed elsewhere. The college then chose not to hire her based upon her demeanor after the matter was cleared up, and took the position that the choice was not related to the initial report. The plaintiff also claimed emotional distress even though the report was promptly corrected.

The Court dismissed the claim for loss of employment because the prove clearly showed the incorrect report was not the reason she lost the job. The job loss was due to how she reacted to the situation. Given that the report was promptly corrected and the college was intending to hire her, she could not blame the screening firms for her own behavior. The court did find but, that she was entitled to pocket up again with her claims for emotional distress based upon the concise period of time before the report was corrected, and it was a jury issue as to whether the screening firms involved exercised an apt level of care.

This case demonstrates the ancient adage that how someone chooses to react to events is sometimes extra vital than the event itself. Even though screening firms go to fantastic lengths to ensure that every report is accurate, as with anything that involves creature beings, errors can occur. That is why under the federal Honest Credit Reporting Act, (FCRA), there are wide provisions for re-investigating and correcting reports. It is certainly understandable that an applicant that teaches about domestic violence would be in tears at being inaccurately described as a violator. But, the mistake was caused by creature error and the report was promptly corrected. It was only the consumer’s own reaction that caused the job loss.

(Note: Employment Screening Resources has adopted a practice of not indentifying the names of parties to lawsuits unnecessarily in blogs and newsletters, in view of the fact that it does not add anything to the lessons learned, and there can be extra to the tale. But, if a reader has a reason to review the actual case and cannot locate it themselves, please contact the author.)