Welcome to the LSIS Investigative Journal

Welcome to the LSIS Investigative Journal

Thursday, December 29, 2011

Independent contractor penalties will now be severe

Independent contractor penalties will now be severe

Published: Dec. 13, 2011 Updated: Dec. 27, 2011 6:45 a.m.

A new California law, SB459, goes into effect Jan. 1, and is probably the most significant piece of new employment-related legislation for California employers this year.
The "willful" misclassification of independent contractors will become in and of itself an unlawful act that will subject an employer to fines of $5,000 to $25,000 for each violation as well as other significant disciplinary action. These new penalties are in addition to any back taxes or other liabilities resulting from the misclassification.
Article Tab: image1-Independent contractor penalties will now be severe
There has always been risks for an employer who misclassifies a worker as an independent contractor, which include back taxes, penalties, interest, unpaid personal incomes taxes of the misclassified worker, overtime, benefits, leave entitlement, and other rights and protections due to employees.
Back taxes, penalties and interest alone can amount to as much as 70% of what was paid to the misclassified worker and an audit can go back 3, sometimes 4 years.
The process of determining independent contractor status has never been an easy one. Different federal and state agencies use their own tests and criteria for making these determinations. While how much control the employer exercises over the work performed is a determining factor in all situations, the real-life situations in which employers find themselves are often muddy at best.
Effective Jan. 1, employers are prohibited from the "willful misclassification" of independent contractors which the law defines as "avoiding employee status for an individual by voluntarily and knowingly misclassifying" the person.
Given the complexity of the analysis required to make an accurate determination, and given how case-specific these determinations must be, we find this new definition to be disappointingly unclear. Our concern is that an employer who makes a good faith determination of independent contractor status might still be found to have engaged in a willful misclassification if they get it wrong.
Employers are further prohibited from making any deductions from the compensation of independent contractors that would have violated the law if the worker had been correctly classified as an employee. Such illegal deductions would include the costs of goods, materials, space rental, services, licenses, repairs, equipment maintenance, fines, etc.
In addition to the new, severe penalties for employers, companies and individuals (other than the employer's own internal staff or legal counsel) who help advise clients on such misclassifications can now be found jointly and severally liable under the law. Employers who are licensed contractors who commit willful misclassification will now also be reported to the Contractors' License Board which will in turn be required to take action against the licensee.
And perhaps the most surprising disciplinary action imposed by this law is that employers found to have engaged in a willful misclassification will be required to post on their Internet site (or in another area accessible to all employees and the general public) for a period of one year a notice that includes the following:
  • that the person or employer has committed a serious violation of the law by engaging in the willful misclassification of employees;
  • that the person or employer has changed its business practices in order to avoid committing further violations;
  • that any employee who believes to have been misclassified may contact the Labor and Workforce Development Agency (along with the LWD's complete contact information);
  • that the notice is being posted pursuant to a state order;
  • the signature of an officer of the company.
Click here for a full review of the new law
The concern over misclassified independent contractors is not specific to California. The U.S. Department of Labor announced that in their 2011 budget, an additional $25 million was being set aside for an initiative to target misclassification of independent contractors. Part of that money was to be used for hiring approximately 100 additional enforcement personnel and "competitive grants" to boost states' incentives and capacity to address this problem.
The Obama administration announced that they expect this initiative to generate over $7 billion in federal tax revenue over the next 10 years.
Ironically, at the same time that California is implementing increased punishment for employers who misclassify independent contractors, the federal government has introduced an amnesty program to help employers resolve past misclassification issues and reduce the past federal payroll taxes due.
What should employers do?
  • Make sure you are aware of the independent contractors that your company is using.
  • Perform a review of each independent contractor to make sure the person would meet the legal criteria.
  • Do not assume that someone is an independent contractor just because you are told that he/she has their own business, has a website, has their own corporation, etc. While these are factors that can help show true independent contractor status, the totality of the situation and what the person is actually doing for your company must be taken into consideration.
  • If any current contractors do not meet the requirements or are questionable, convert them to employee status. Consider fixing the problem retroactively to reduce your total liability.
  • For independent contractors who would legitimately pass the tests, make sure you have a well- drafted written agreement in place as well as documentation that would help you prove that your classification was legitimate (a copy of the contractor's business license, proof of business insurance, copies of all 1099 forms filed, etc.)
This article is written by Lauraine Bifulco, president and principal consultant of Vantaggio HR in San Juan Capistrano, a full-service human resource and management consulting firm.
This article is for discussion and informational purposes only, and should not be considered legal advice.

Link > Independent contractor penalties will now be severe

Wednesday, December 21, 2011

Nowhere to Cut Federal Spending ???

Nowhere to Cut Federal Spending ???


 ABC Evening News just reported some crazy federal govt. spending.

The Feds just spent 17.8 million in AID to China this year, after we borrowed the money from them...........what?

The dead project, Bridge to Nowhere cost us over $14 million this year alone with a $60,000 promotional video.

My favorite...our elected officials dispensed $600,000 to study why monkeys throw feces!

 Here's some other spending facts:

  • Immediately before the current recession, Washington spent $24,800 per household. Simply returning to that level (adjusted for inflation) would likely balance the budget by 2019 without any tax hikes. 
  • The federal government made at least $98 billion in improper payments in 2009.
  • Washington spends $92 billion on corporate welfare (excluding TARP) versus $71 billion on homeland security.
  • Washington spends $25 billion annually maintaining unused or vacant federal properties.
  • Government auditors spent the past five years examining all federal programs and found that 22 percent of them—costing taxpayers a total of $123 billion annually—fail to show any positive impact on the populations they serve.
  • The Congressional Budget Office published a “Budget Options” series identifying more than $100 billion in potential spending cuts.
  • Because of overstaffing, the U.S. Postal Service selects 1,125 employees per day to sit in empty rooms. They are not allowed to work, read, play cards, watch television, or do anything. This costs $50 million annually.
  • Washington will spend $2.6 million training Chinese prostitutes to drink more responsibly on the job.
  • Stimulus dollars have been spent on mascot costumes, electric golf carts, and a university study examining how much alcohol college freshmen women require before agreeing to casual sex.
  • Examples from multiple Government Accountability Office (GAO) reports of wasteful duplication include 342 economic development programs; 130 programs serving the disabled; 130 programs serving at-risk youth; 90 early childhood development programs; 75 programs funding international education, cultural, and training exchange activities; and 72 safe water programs.
  • A GAO audit classified nearly half of all purchases on government credit cards as improper, fraudulent, or embezzled. Examples include gambling, mortgage payments, liquor, lingerie, iPods, Xboxes, jewelry, Internet dating services, and Hawaiian vacations. In one extraordinary example, the Postal Service spent $13,500 on one dinner at a Ruth’s Chris Steakhouse, including “over 200 appetizers and over $3,000 of alcohol, including more than 40 bottles of wine costing more than $50 each and brand-name liquor such as Courvoisier, Belvedere and Johnny Walker Gold.” The 81 guests consumed an average of $167 worth of food and drink apiece.
  • Improper or fraudulent Medicare spending now totals $47 billion annually—12.4 percent of its budget.
  • New York distributed $140 million in stimulus money into the individual accounts of families on welfare, yet neglected to mention it was intended for school supplies. Local ATMs were depleted, and much of the money was reportedly spent on “flat screen TV’s, iPods and video gaming systems” as well as “cigarettes and beer.”
  • Washington will spend $615,175 on an archive honoring the Grateful Dead.
  • Federal employees owe more than $3 billion in income taxes they failed to pay in 2008.
  • Each month, taxpayers provide $40,000 worth of office space, cell phones, staff, and an SUV for former House Speaker Dennis Hastert, who currently works as a lobbyist for private corporations and foreign governments.
  • House Speaker Nancy Pelosi and her staff have charged taxpayers $101,000 forin-flight services”—including food and liquor—during trips on Air Force jets over the last two years. Charges reportedly include “Maker’s Mark whiskey, Courvoisier cognac, Johnny Walker Red scotch, Grey Goose vodka, E&J brandy, Bailey’s Irish Crème, Bacardi Light rum, Jim Beam whiskey, Beefeater gin, Dewars scotch, Bombay Sapphire gin, Jack Daniels whiskey, and Corona beer.”
  • The Legal Services Corporation, which is supposed to provide legal services to the poor, has repeatedly ignored warnings to stop spending its money on alcohol. It also funds limousines, first-class airfare, and “death by Chocolate” pastries for its executives.
  • The Department of Energy spent nine years and $153 million on an obsolete cyber-security project that was supposed to safeguard America’s nuclear weapons information.
  • The stimulus set aside $350 million for a national broadband coverage map—even though one private firm stated it could create one for $3.5 million.
  • Fannie Mae—now backed up by taxpayers—paid $6.3 million in legal defense costs for ousted executives such as Franklin Raines. An additional $16.8 million was spent defending Fannie Mae’s regulators in litigation against the former executives.
  • The Census Bureau spent $2.5 million on Super Bowl ads, and on-air mentions by sportscasters.
  • New documents reveal that the Department of Homeland Security (DHS) lost 1,000 computers in 2008. Not to be outdone, Homeland Security officers lost nearly 200 guns in places like restaurant restrooms, convenience stores, and bowling alleys. Several of the guns ended up in the hands of criminals.
  • The State Department will spend $450,000 on art shows in Venice, Italy.
  • During a recent three-day conference, NASA spent $62,611 on “light refreshments” for its 317 attendees—$66 per day per person. NASA officials said such expensive snacks were needed to keep its officials from wandering away from the conference.
  • NASA spent $500 million constructing a 355-foot steel tower to launch a rocket that is now unlikely to ever be built.
  • The Congressional Research Service has confirmed that the new health care law may subsidize Viagra and other sexual performance drugs for convicted rapists and sex offenders.
  • Federal agencies are delinquent on nearly 20 percent of employee travel charge cards, costing taxpayers hundreds of millions of dollars annually.
  • The Securities and Exchange Commission spent $3.9 million rearranging desks and offices at its Washington, D.C., headquarters.
  • Over half of all farm subsidies go to commercial farms, which report average household incomes of $200,000.
  • A GAO audit found that 95 Pentagon weapons systems suffered from a combined $295 billion in cost overruns.
  • The refusal of many federal employees to fly coach costs taxpayers $146 million annually in flight upgrades.
  • Washington spent $126 million in 2009 on projects associated with the Kennedy family legacy in Massachusetts. Additionally, Senator John Kerry (D–MA) diverted $20 million from the 2010 defense budget to subsidize a new Edward M. Kennedy Institute.
  • The federal government owns more than 50,000 vacant homes.
  • The Federal Communications Commission spent $350,000 to sponsor NASCAR driver David Gilliland.
  • Members of Congress have spent hundreds of thousands of taxpayer dollars supplying their offices with popcorn machines, plasma televisions, DVD equipment, ionic air fresheners, camcorders, and signature machines—plus $24,730 leasing a Lexus, $1,434 on a digital camera, and $84,000 on personalized calendars.
  • More than $13 billion in Iraq aid has been classified as wasted or stolen. Another $7.8 billion cannot be accounted for.
  • Congress recently gave Alaska Airlines $500,000 to paint a Chinook salmon on a Boeing 737.
  • The Transportation Department will subsidize up to $2,000 per flight for direct flights between Washington, D.C., and the small hometown of Congressman Hal Rogers (R–KY)—but only on Monday mornings and Friday evenings, when lawmakers, staff, and lobbyists usually fly. Rogers is a member of the Appropriations Committee, which writes the Transportation Department’s budget.
  • Washington has spent $3 billion re-sanding beaches—even as this new sand washes back into the ocean.
  • The Defense Department wasted $100 million on unused flight tickets and never bothered to collect refunds even though the tickets were refundable.
  • Washington spends $60,000 per hour shooting Air Force One photo-ops in front of national landmarks.
  • Congress has ignored efficiency recommendations from the Department of Health and Human Services that would save $9 billion annually.
  • Taxpayers are funding paintings of high-ranking government officials at a cost of up to $50,000 apiece.
  • The state of Washington sent $1 food stamp checks to 250,000 households in order to raise state caseload figures and trigger $43 million in additional federal funds.
  • Suburban families are receiving large farm subsidies for the grass in their backyards—subsidies that many of these families never requested and do not want.
  • Homeland Security employee purchases include 63-inch plasma TVs, iPods, and $230 for a beer brewing kit.
  • The National Institutes of Health spends $1.3 million per month to rent a lab that it cannot use.
  • Congress recently spent $2.4 billion on 10 new jets that the Pentagon insists it does not need and will not use.
  • Lawmakers diverted $13 million from Hurricane Katrina relief spending to build a museum celebrating the Army Corps of Engineers—the agency partially responsible for the failed levees that flooded New Orleans.
  • Medicare officials recently mailed $50 million in erroneous refunds to 230,000 Medicare recipients.
  • Audits showed $34 billion worth of Department of Homeland Security contracts contained significant waste, fraud, and abuse.
  • The Advanced Technology Program spends $150 million annually subsidizing private businesses; 40 percent of this funding goes to Fortune 500 companies.
  • The Conservation Reserve program pays farmers $2 billion annually not to farm their land.


Tuesday, December 20, 2011

AP IMPACT: When your criminal past isn't yours

AP IMPACT: When your criminal past isn't yours

AP IMPACT: 'I'm being punished for living right': Background check system is haunted by errors

SAN FRANCISCO (AP) -- A clerical error landed Kathleen Casey on the streets.
Out of work two years, her unemployment benefits exhausted, in danger of losing her apartment, Casey applied for a job in the pharmacy of a Boston drugstore. She was offered $11 an hour. All she had to do was pass a background check.

It turned up a 14-count criminal indictment. Kathleen Casey had been charged with larceny in a scam against an elderly man and woman that involved forged checks and fake credit cards.
There was one technicality: The company that ran the background check, First Advantage, had the wrong woman. The rap sheet belonged to Kathleen A. Casey, who lived in another town nearby and was 18 years younger.

Kathleen Ann Casey, would-be pharmacy technician, was clean.
"It knocked my legs out from under me," she says.

The business of background checks is booming. Employers spend at least $2 billion a year to look into the pasts of their prospective employees. They want to make sure they're not hiring a thief, or worse.

But it is a system weakened by the conversion to digital files and compromised by the welter of private companies that profit by amassing public records and selling them to employers. These flaws have devastating consequences.
It is a system in which the most sensitive information from people's pasts is bought and sold as a commodity.

A system in which computers scrape the public files of court systems around the country to retrieve personal data. But a system in which what they retrieve isn't checked for errors that would be obvious to human eyes.

A system that can damage reputations and, in a time of precious few job opportunities, rob honest workers of a chance at a new start. And a system that can leave the Kathleen Caseys of the world — the innocent ones — living in a car.

Those are the results of an investigation by The Associated Press that included a review of thousands of pages of court filings and interviews with dozens of court officials, data providers, lawyers, victims and regulators.

[See also: 6 Best Cities for Starting Over in 2012]

"It's an entirely new frontier," says Leonard Bennett, a Virginia lawyer who has represented hundreds of plaintiffs alleging they were the victims of inaccurate background checks. "They're making it up as they go along."

Two decades ago, if a county wanted to update someone's criminal record, a clerk had to put a piece of paper in a file. And if you wanted to read about someone's criminal past, you had to walk into a courthouse and thumb through it. Today, half the courts in the United States put criminal records on their public websites.

Digitization was supposed to make criminal records easier to access and easier to update. To protect privacy, laws were passed requiring courts to redact some information, such as birth dates and Social Security numbers, before they put records online. But digitization perpetuates errors.
"There's very little human judgment," says Sharon Dietrich, an attorney with Community Legal Services in Philadelphia, a law firm focused on poorer clients. Dietrich represents victims of inaccurate background checks. "They don't seem to have much incentive to get it right."
Dietrich says her firm fields about twice as many complaints about inaccurate background checks as it did five years ago.

The mix-ups can start with a mistake entered into the logs of a law enforcement agency or a court file. The biggest culprits, though, are companies that compile databases using public information.
In some instances, their automated formulas misinterpret the information provided them. Other times, as Casey discovered, records wind up assigned to the wrong people with a common name.
Another common problem: When a government agency erases a criminal conviction after a designated period of good behavior, many of the commercial databases don't perform the updates required to purge offenses that have been wiped out from public record.

It hasn't helped that dozens of databases are now run by mom-and-pop businesses with limited resources to monitor the accuracy of the records.

[See also: Gift Cards for Good Driving]
The industry of providing background checks has been growing to meet the rising demand for the service. In the 1990s, about half of employers said they checked backgrounds. In the decade since Sept. 11, that figure has grown to more than 90 percent, according to the Society for Human Resource Management.

To take advantage of the growing number of businesses willing to pay for background checks, hundreds of companies have dispatched computer programs to scour the Internet for free court data.

But those data do not always tell the full story.
Gina Marie Haynes had just moved from Philadelphia to Texas with her boyfriend in August 2010 and lined up a job managing apartments. A background check found fraud charges, and Haynes lost the offer.

A year earlier, she had bought a Saab, and the day she drove it off the lot, smoke started pouring from the hood. The dealer charged $291.48 for repairs. When Haynes refused to pay, the dealer filed fraud charges.

Haynes relented and paid after six months. Anyone looking at Haynes' physical file at the courthouse in Montgomery County, Pa., would have seen that the fraud charge had been removed. But it was still listed in the limited information on the court's website.

The website has since been updated, but Haynes, 40, has no idea how many companies downloaded the outdated data. She has spent hours calling background check companies to see whether she is in their databases. Getting the information removed and corrected from so many different databases can be a daunting mission. Even if it's right in one place, it can be wrong in another database unknown to an individual until a prospective employer requests information from it. By then, the damage is done.

"I want my life back," Haynes says.
Haynes has since found work, but she says that is only because her latest employer didn't run a background check.

Hard data on errors in background checks are not public. Most leading background check companies contacted by the AP would not disclose how many of their records need to be corrected each year.

A recent class-action settlement with one major database company, HireRight Solutions Inc., provides a glimpse at the magnitude of the problems.

The settlement, which received tentative approval from a federal judge in Virginia last month, requires HireRight to pay $28.4 million to settle allegations that it didn't properly notify people about background checks and didn't properly respond to complaints about inaccurate files. After covering attorney fees of up to $9.4 million, the fund will be dispersed among nearly 700,000 people for alleged violations that occurred from 2004 to 2010. Individual payments will range from $15 to $20,000.

In an effort to prevent bad information from being spread, some courts are trying to block the computer programs that background check companies deploy to scrape data off court websites. The programs not only can misrepresent the official court record but can also hog network resources, bringing websites to a halt.

Virginia, Arizona and New Mexico have installed security software to block automated programs from getting to their courts' sites. New Mexico's site was once slowed so much by automated data-mining programs that it took minutes for anyone else to complete a basic search. Since New Mexico blocked the data miners, it now takes seconds.

In the digital age, some states have seen an opportunity to cash in by selling their data to companies. Arizona charges $3,000 per year for a bundle of discs containing all its criminal files. The data includes personal identifiers that aren't on the website, including driver's license numbers and partial Social Security numbers.

Other states, exasperated by mounting errors in the data, have stopped offering wholesale subscriptions to their records.

North Carolina, a pioneer in marketing electronic criminal records, made $4 million selling the data last year. But officials discovered that some background check companies were refusing to fix errors pointed out by the state or to update stale information.

State officials say some companies paid $5,105 for the database but refused to pay a mandatory $370 monthly fee for daily updates to the files — or they would pay the fee but fail to run the update. The updates provided critical fixes, such as correcting misspelled names or deleting expunged cases.

North Carolina, which has been among the most aggressive in ferreting out errors in its customers' files, stopped selling its criminal records in bulk. It has moved to a system of selling records one at a time. By switching to a more methodical approach, North Carolina hopes to eliminate the sloppy record-keeping practices that has emerged as more companies have been allowed to vacuum up massive amounts of data in a single sweep.

Virginia ended its subscription program. To get full court files now, you have to go to the courthouse in person. You can get abstracts online, but they lack Social Security numbers and birth dates, and are basically useless for a serious search.

North Carolina told the AP that taxpayers have been "absorbing the expense and ill will generated by the members of the commercial data industry who continue to provide bad information while falsely attributing it to our courts' records."

North Carolina identified some companies misusing the records, but other culprits have gone undetected because the data was resold multiple times.

Some of the biggest data providers were accused of perpetuating errors. North Carolina revoke the licenses of CoreLogic SafeRent, Thomson West, CourtTrax and five others for repeatedly disseminating bad information or failing to download updates.

Thomson West says it was punished for two instances of failing to delete outdated criminal records in a timely manner. Such instances are "extremely rare" and led to improvements in Thomson West's computer systems, the company said.

CoreLogic says its accuracy standards meet the law, and it seemed to blame North Carolina, saying that the state's actions "directly contributed to the conditions which resulted in the alleged contract violations," but it would not elaborate. CourtTrax did not respond to requests for comment.
Other background check companies say the errors aren't always their fault.

LexisNexis, a major provider of background checks and criminal data, said in a statement that any errors in its records "stem from inaccuracies in original source material — typically public records such as courthouse documents."

But other problems have arisen with the shift to digital criminal records. Even technical glitches can cause mistakes.

Companies that run background checks sometimes blame weather. Ann Lane says her investigations firm, Carolina Investigative Research, in North Carolina, has endured hurricanes and ice storms that knocked out power to her computers and took them out of sync with court computers.

While computers are offline, critical updates to files can be missed. That can cause one person's records to fall into another person's file, Lane says. She says glitches show up in her database at least once a year.

Lane says she double-checks the physical court filings, a step she says many other companies do not take. She calls her competitors' actions shortsighted.

"A lot of these database companies think it's 'ka-ching ka-ching ka-ching,'" she says.
Data providers defend their accuracy. LexisNexis does more than 12 million background checks a year. It is one of the world's biggest data providers, with more than 22 billion public records on its own computers.

It says fewer than 1 percent of its background checks are disputed. That still amounts to 120,000 people — more than the population of Topeka, Kan.

But there are problems with those assertions. People rarely know when they are victims of data errors. Employers are required by law to tell job applicants when they've been rejected because of negative information in a background check. But many do not.

Even the vaunted FBI criminal records database has problems. The FBI database has information on sentencings and other case results for only half its arrest records. Many people in the database have been cleared of charges. The Justice Department says the records are incomplete because states are inconsistent in reporting the conclusions of their cases. The FBI restricts access to its records, locking out the commercial database providers that regularly buy information from state and county government agencies.

Data providers are regulated by the Federal Trade Commission and required by federal law to have "reasonable procedures" to keep accurate records. Few cases are filed against them, though, mostly because building a case is difficult.

A series of breaches in the mid-2000s put the spotlight on data providers' accuracy and security. The fallout was supposed to put the industry on a path to reform, and many companies tightened security. But the latest problems show that some accuracy practices are broken.

The industry says it polices itself and believes the approach is working. Mike Cool, a vice president with Acxiom Corp., a data wholesaler, praised an accreditation system developed by an industry group, the National Association of Professional Background Screeners. Fear of litigation keeps the number of errors in check, he says.

"The system works well if everyone stays compliant," Cool says.
But when the system breaks down, it does so spectacularly.

Dennis Teague was disappointed when he was rejected for a job at the Wisconsin state fair. He was horrified to learn why: A background check showed a 13-page rap sheet loaded with gun and drug crimes and lengthy prison lockups. But it wasn't his record. A cousin had apparently given Teague's name as his own during an arrest.

What galled Teague was that the police knew the cousin's true identity. It was even written on the background check. Yet below Teague's name, there was an unmistakable message, in bold letters: "Convicted Felon."

Teague sued Wisconsin's Department of Justice, which furnished the data and prepared the report. He blamed a faulty algorithm that the state uses to match people to crimes in its electronic database of criminal records. The state says it was appropriate to include the cousin's record, because that kind of information is useful to employers the same way it is useful to law enforcement.

Teague argued that the computers should have been programmed to keep the records separate.
"I feel powerless," he says. "I feel like I have the worst luck ever. It's basically like I'm being punished for living right."

One of Teague's lawyers, Jeff Myer of Legal Action of Wisconsin, an advocacy law firm for poorer clients, says the state is protecting the sale of its lucrative databases.

"It's a big moneymaker, and that's what it's all about," Myer says. "The convenience of online information is so seductive that the record-keepers have stopped thinking about its inaccuracy. As valuable as I find public information that's available over the Internet, I don't think people have a full appreciation of the dark side."

In court papers, Wisconsin defended its inclusion of Teague's name in its database because his cousin has used it as an alias.

"We've already refuted Mr. Teague's claims in our court documents," said Dana Brueck, a spokeswoman for Wisconsin's Department of Justice. "We're not going to quibble with him in the press."

A Wisconsin state judge plans to issue his decision in Teague's case by March 11.
The number of people pulling physical court files for background checks is shrinking as more courts put information online. With fewer people to control quality, accuracy suffers.

Some states are pushing ahead with electronic records programs anyway. Arizona says it hasn't had problems with companies failing to implement updates.

Others are more cautious. New Mexico had considered selling its data in bulk but decided against it because officials felt they didn't have an effective way to enforce updates.

Meanwhile, the victims of data inaccuracies try to build careers with flawed reputations.
Kathleen Casey scraped by on temporary work until she settled her lawsuit against First Advantage, the background check company. It corrected her record. But the bad data has come up in background checks conducted by other companies.

She has found work, but she says the experience has left her scarred.

"It's like Jurassic Park. They come at you from all angles, and God knows what's going to jump out of a tree at you or attack you from the front or from the side," she says. "This could rear its ugly head again — and what am I going to do then?"
AP Technology Writer Michael Liedtke in San Francisco contributed to this report.

LINK > AP IMPACT: When your criminal past isn't yours

Friday, December 2, 2011

9th Circuit, in Reversal, Says Traffic Stops Aren't 'Arrests'

9th Circuit, in Reversal, Says Traffic Stops Aren't 'Arrests'

Embracing the common meaning, Judge N. Randy Smith creates a circuit split.

The California recorder
Essential California Legal Content

2011-11-30 03:43:14 PM

SAN FRANCISCO — Is a traffic stop an "arrest" for sentencing purposes in federal court?
The Ninth Circuit U.S. Court of Appeals on Wednesday in an en banc ruling said no, reversing itself and creating a circuit split.
The court, by a 10-1 vote, said a traffic citation is not the same as a formal arrest, which would include informing the suspect he was under arrest and taking him to jail or a police station.
That didn't happen in the case of Israel Leal-Felix, a Mexican citizen who had twice been cited for driving on a suspended license before his federal indictment for unlawful re-entry.
When his criminal history was prepared for sentencing in the re-entry case, the traffic stops were treated as arrests. Riverside U.S. District Judge Virginia Phillips gave him 21 months in prison. Had the citations been excluded, his range would have started at just 18 months.
"Nothing in the record suggests Leal-Felix was ever formally arrested for driving with a suspended license," Judge N. Randy Smith wrote for the majority. "He was not told he was 'under arrest,' he was not transported to the police station, and he was not booked into jail."
Leal-Felix did eventually serve time in county jail for the driving offenses.
Wednesday's ruling in U.S. v. Leal-Felix, 09-50426 reverses the three-judge panel's finding from a year ago that adopted the reasoning of the Seventh Circuit.
Judge Johnnie Rawlinson, who was in the majority on the first ruling, held her ground and was the lone dissenter in the en banc decision, saying the majority improperly imports Fourth Amendment analysis into sentencing calculations, creating an unnecessary circuit split. "I do not agree that the concept of custody for the purpose of criminal history calculation is co-extensive with a formal arrest that includes Miranda warnings, handcuffs and a trip to the police station," she wrote.
Four judges weighed in with a separate concurrence, saying the main reason traffic citations aren't arrests under the sentencing guidelines is the common meaning of the term arrest.
"I am confident that an average citizen — with or without a law degree — would not believe he had been arrested if pulled over, briefly detained and issued a traffic ticket," Judge M. Margaret McKeown wrote.
If a traffic citation constituted an arrest in ordinary parlance, she wrote, then job and college applicants would need to employ an entirely different "truth-o-meter."
"In other words, treating an ordinary traffic ticket as an arrest defies our common experience and would be a paradigmatic shift."


Monday, November 28, 2011

Social networks not private in court

Social networks not private in court
Judge rails against notions of secrecy
Monday, November 28, 2011
Even without appellate case law in Pennsylvania to provide guidance on the discoverability of information on Facebook, the standard is becoming clear: Post at your own risk.

Three courts in this state have now decided that, if a party in a civil case posts information on his Facebook page, and that information appears to contradict statements in discovery or testimony, then the party's Facebook page falls within the scope of discovery.

In the most recent case, Largent v. Reed, a Franklin County judge ordered plaintiff Jennifer Largent to turn over her Facebook username and password to defendant Jessica Rosko, who allegedly caused an auto accident that left plaintiffs Jennifer and Keith Largent with "serious and permanent physical and mental injuries."

The decision came in Common Pleas Court Judge Richard J. Walsh's 14-page opinion, the beginning of which reads like a debriefing on the world's most popular website. According to Judge Walsh, Ms. Largent's Facebook page brought up questions about the extent of her injuries.

According to the opinion, the Facebook page reveals Ms. Largent posted about going to the gym, despite testifying that she needed to walk with a cane. Pictures on the website show Ms. Largent "enjoying life with her family." Judge Walsh pointed to these examples from the "public" profile that helped satisfy the slight relevancy standard the defense needed to probe the rest of her page. The plaintiffs filed negligence and loss of consortium claims.
Judge Walsh said there can be "little expectation of privacy" on a social networking site.

He said no court has ever recognized a "general privacy privilege" for Facebook information, "and neither will we." 

The opinion, which also warns readers of the "dark side" of social media, opens with Facebook's long-standing motto -- "Facebook helps you connect and share with the people in your life" -- and goes on to quote the site's policy on responding to legal requests, preventing harm and sharing user's information.

"Only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets," Judge Walsh said.
Judge Walsh said making a Facebook page "private" does not shield it from discovery because even private posts are shared with other people.

Leonard Deutchman, who writes a cyber law column for the Law Weekly, said the decision is more narrow than some of the leading federal case law dealing with Facebook, because the defendant in this case is seeking information directly from the plaintiff.

Ben Present: 215-557-2315 or bpresent@alm.com. To read more articles like this, visit www.thelegalintelligencer.com.

First published on November 28, 2011 at 12:00 am

Saturday, November 26, 2011

Air Force Academy adapts to pagans, druids, witches and Wiccans

I think a Happy Festivus Pole would have been a heck of a lot cheaper!

Air Force Academy adapts to pagans, druids, witches and Wiccans

In the still of a cold November evening, a small gathering of pagans, led by two witches, begins preparations for the coming winter solstice. But these are not just any pagans, and this is not just any setting. They are future officers of the United States Air Force practicing their faith in the basement of the Air Force Academy's cadet chapel.

Their ranks are slim. According to the academy's enrollment records, only three of 4,300 cadets identified themselves as pagans, followers of an ancient religion that generally does not worship a single god and considers all things in nature interconnected.

Still, the academy this year dedicated an $80,000 outdoor worship center — a small Stonehenge-like circle of boulders with propane fire pit — high on a hill for the handful of current or future cadets whose religions fall under the broad category of "Earth-based." Those include pagans, Wiccans, druids, witches and followers of Native American faiths.

Witches in the Air Force? Chaplain Maj. Darren Duncan, branch chief of cadet faith communities at the academy, sighs. A punch line waiting to happen, and he's heard all the broom jokes.

For the record, there are no witches among the cadets this year. But the two spiritual leaders for all Earth-based religions — one a civilian, one an Air Force reservist — are witches and regularly cast spells, which they say is not so different from offering prayer. There also are no druids this year. But there could be next year.

"We're here to accommodate all religions, period," Duncan says. The building of the Cadet Chapel Falcon Circle on the hilltop, he says, is no different from the past conversion of chapel rooms into worship spaces that serve this year's 11 Muslim, 16 Buddhist and 10 Hindu cadets. There are also 43 self-identified atheist cadets whose beliefs, or lack of them, Duncan says are also to be respected.

"It is very nice to have our own space," says Cadet 1st Class Nicole Johnson, a 21-year-old senior from Florida who became a pagan after entering the academy.

This is not about religious tolerance — a phrase Duncan, a Christian, rejects as implying that the majority religion is simply putting up with the minority. He calls it a 1st Amendment issue. If the military is to defend the Constitution, it should also be upholding its guarantee of religious freedom. "We think we are setting the standard," Duncan says.

In addition to providing worship space, new policy dictates that all cadets take courses in understanding the religions of those who may someday fall under their command. Recently he's fielded calls from West Point and Annapolis about replicating the Air Force's efforts.

In 2005, the Air Force — still reeling from accusations of sexual assaults against female cadets at the academy — was accused in a lawsuit of allowing aggressive proselytizing toward non-Christians. The suit, ultimately dismissed, was brought by an attorney and academy graduate, Michael Weinstein, who founded the Military Religious Freedom Foundation and has continued to fight what he calls aclimate of religious oppression at the academy.

Weinstein isn't buying this new spirit of "Kumbaya." He says he has received hundreds of complaints from cadets who allege pressure by other cadets or superiors to profess faith in Christ and cites a desecration incident in 2010 when a cross was left at a previous Earth-based worship site. The Air Force condemned that incident, and it was never discovered who was responsible.

Weinstein says the presence of the powerful fundamental Christian organization, Focus on the Family, just a short hop down the highway from the academy only adds to tension for non-evangelicals.

Meade Warthen, a civilian spokesman for the academy, stands by the academy's efforts, adding that it takes heat not only from critics like Weinstein but also from those who say it does too much to accommodate other religions.

Back at the solstice preparations, with glue guns drawn and takeout pizza within easy reach, the pagan cadets decorated yule logs with bits of ribbon and glitter. Yule logs, whose ritual burning symbolizes faith in the reappearance of the sun, will be displayed alongside the Christmas trees and menorahs in next month's crowded religious calendar at the academy.

And though Johnson acknowledges that her beliefs are often misunderstood, she says she has taken no serious grief from other cadets, save occasional questions about whether pagans dance naked (she doesn't) or whether she can cast a spell on commanding officers (she wouldn't even if she could).

The rule is no spells cast without someone's permission. There is a prevailing tenet of her faith, she says: Do as you will, but harm no one.