June 2016 NCISS Monthly Report from Lobbyit

In This Issue

State Advocacy Monitoring

Stakeholder Activity

Legislation

In the month of June, Lobbyit met with the Senate Commerce Committee to discuss reauthorization of the Federal Aviation Administration (FAA) and drone regulation, discussed labor-related policy riders with House Appropriations Committee staff, and drafted and submitted a comment to the Office of Personnel Management concerning their proposed rule to ban the use of questions about past convictions in federal hiring decisions until after a conditional offer of employment was made.

State Legislation Advocacy Monitoring (SLA M)

Lobbyit has set up NCISS's "state-level" tracking and continues to identify hundreds of bills in 30 active states. The most important, by state, are below.

To view bills impacting private investigators, private patrol operators, or security guards in your state, go to w ww.NCISS.org to the Advocacy Hub (direct link: http://goo.gl/QSCcgc) and follow the State Legislation link (direct link: http://goo.gl/RPcv0W) .

You can search alphabetically by State or click on your state on the United States map provided at the top of the page (current example above). If your state is not listed, it means that your state was either not in session or there were no bills introduced that met our search parameters. If you know of a bill in your

state that we need to become aware, please contact your Regional Director or your NCISS Legislative Chairs, Francie Koehler or Brad Duffy.

Stakeholder Activity

First, Lobbyit maintained its conversation with the Senate Commerce committee concerning provisions in FAA reauthorization regulating the use of drones (the primary subject of our recent report). Surprisingly, we were quietly informed by the committee that they expect the drone-related provisions to be dropped from the bill entirely. The Committee expects a one-year authorization, with the issue to be revisited by September of 2017.

With respect to labor-related riders in an eventual appropriations omnibus, the outlook is unclear. Speaker Ryan has called for appropriations bill devoid of troublesome policy amendments, but many in the GOP caucus still want to include language preventing the Department of Labor (DOL) from enacting/enforcing a series of rules (i.e. Ambush, Overtime, Micro Unions, Persuader, etc. - all having been the subject of earlier NCISS dispatches).

In other words, the world awaits the end of calendar year 2016. While many of the 12 appropriations bills have cleared Committee in both House and Senate, there are only a few legislative days left before the mid-July break for the conventions, and August recess. Congress is out all of October preparing for the election, so the safe money is on a short term continuing resolution (CR) to fund government into, perhaps, December, while Members hack out a larger omnibus approps bill for FY 2017 to be passed as the December holiday approaches.

While the process unfolds, Lobbyit and NCISS will continue to work with Member offices and other interested parties to include provisions preventing the Administration from enacting and/or enforcing some of its more damaging recent rules. We will keep you posted!

OPM "Check the Box" Rule

Lobbyit and NCISS drafted and submitted the following comment to the Ofice of Personnel Management (OPM) on their recently-proposed rule to "ban the box" in Federal hiring decisions.

Kimberly A. Holden

Deputy Associate Director for Recruitment and Hiring

U.S. Office of Personnel Management

Room 6351D, 1900 E Street, NW.,

Washington, DC 20415-9700

The National Council of Investigation and Security Services (NCISS) hereby submits these comments to the Office of Personnel Management's (OPM) proposed rulemaking published in the Federal Register on May 2, 2016 at 81 Federal Register 26173.

NCISS is a trade association representing private investigators and security service companies from across the United States. NCISS is comprised of nearly 1000 members, encompassing over 90,000 professionals and generating approximately $2.5 billion in economic activity per annum.

As the national voice of licensed private investigators and security service providers for over 40 years, NCISS faithfully submits these comments on OPM's pending rule on criminal background checks for prospective employees.

While we appreciate that this rule is limited to Federal hiring practices, we have several concerns about the U.S. Government (USG) heading down this problematic path.

First, with respect to OPM's assertion that conducting criminal background checks only after a conditional offer has been made will save time and resources, this conclusion runs counter to our experience.

NCISS members conduct background investigations on individuals for a wide variety of purposes, including prospective employment. NCISS members also contract with the USG to provide security services for sensitive locations, working closely with such agencies at the Department of Homeland Security (DHS) and the Transportations Security Administration (TSA) to help protect several large domestically-situated international airports. If a history of criminal conduct is in any way disqualifying for a position, there is no use in vetting a prospective employee up to a prospective hiring decision, then asking such a dispositive question. We see no utility in postponing a threshold issue until after the dedication of significant time and resources, then starting over should a potential hire wash out because of a serious past conviction.

We all know that the Federal hiring process is lengthy and cumbersome to begin with. Injecting additional uncertainty, and potentially significant new delays, does not seem to us to be sound policy.

Second, we are concerned with the follow-on effects of this rule's implementation. Policies adopted by the USG have tremendous persuasive authority in state and local jurisdictions. Should this aspect of Federal employment practice become the expectation in the private sector, as encouraged or required by smaller divisions of government, not only could it make the hiring process extremely more cumbersome and wasteful (e.g. our foregoing contention), but it could also entail significant additional litigation exposure.

If employers are in a position of having to prove that a criminal conviction is pertinent to any particular hiring decision, it leaves employers open to lengthy and expensive legal challenges to their right to decide who to hire. For instance, a conviction for perjury or fraud may have little to do with the actual daily job functions of a security guard, but would likely disqualify individuals from our or our clients' employ simply due to concerns about character and trust. NCISS members often act in quasi-official roles, existing as the first line of authority in large public buildings and at significant public gatherings, or as adjunct to officials in a variety of investigational roles. In many instances, our members are armed.

As such, we have a heightened level of responsibility to the public. We can't be put in a situation where the law expects more from us on one hand, while simultaneously degrading our ability to meet that standard. Our fear is that our hiring decisions could be legally challenged, diverting a great deal of time and money, and substituting the judgment of an outside third party for our own experience in the sector. Then, subsequent to some unfortunate incident, we are liable to these higher expectations.

In essence, the process this change contemplates further insinuates government into decisions better left to the people on the ground, effectively imposing remote regulatory imprimatur on the close business decisions of business owners and operators. And in the process, inviting delay, waste, and expensive legal complications. We do not believe this is fair, advisable or proper.

Finally, this issue is consonant with the Equal Employment Opportunity Commission's (EEOC) recent guidance on the use of credit checks in making employment decisions. Both credit and criminal histories are important criteria in hiring decisions, yet the USG appears to be headed in a direction where regulatory diktat will force employers to ignore such fundamental considerations.

The primary reason most employers run credit reports is not to check the applicant's credit, but rather to look for employment which was not reported on the application, which in turn may lead to past malfeasance. In fact, credit reports for employment purposes are treated as "soft inquiries" and do not include credit scores. Additionally, credit reports are useful because they often reveal false information on employment histories, or other pertinent information. For instance, a recent investigation conducted by an NCISS member found that a credit check on a company comptroller who embezzled several hundred thousand dollars would have revealed large gambling debts

NCISS sees these issues (i.e. restrictions on the use of credit and criminal histories) eventually combining to tie the hands of employers in making hiring decisions. At a minimum, these provisions unwisely consume time and resources, leave private business decisions open to the judgment of third parties, and pave the way for expensive and vexatious litigation. At worst, they endanger public safety.

We recognize that gainful employment is an essential part of the rehabilitation process. In our experience, employers are sympathetic about past minor transgressions of applicants, and are often willing to give promising applicants a second chance. We don't believe that most employers reject, out-of-hand, applicants who check the box. In fact, they often ask for a more in-depth review.

But the employer has a right to know about those past violations for logical human resource reasons, employee safety, and potential civil liability. The hiring process is expensive, and most human resource departments are looking for highly motivated candidates, which is often a trait of persons seeking a second chance.

Thank you for your consideration of our comments.

Legislation

S.2534 - "A bill to amend the National Child Protection Act of 1993 to establish a permanent background check system for private security officers."

Introduced by Senator Toomey

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S 177 -- Data Security and Breach Notification Act

Official Title: A bill to protect consumers by requiring reasonable security policies and procedures to protect data containing personal information, and to provide for nationwide notice in the event of a breach of security.

S 237 -- Geolocational Privacy and Surveillance Act

Official Title: A bill to amend title 18, United States Code, to specify the circumstances in which a person may acquire geolocation information and for other purposes.

S 288 -- National Labor Relations Board Reform Act

Official Title: A bill to amend the National Labor Relations Act to reform the National Labor Relations Board, the Office of the General Counsel, and the process for appellate review, and for other purposes.

S 356 -- Electronic Communications Privacy Act Amendments Act

Official Title: A bill to improve the provisions relating to the privacy of electronic communications.

S 407 -- Large Capacity Ammunition Feeding Device Act

Official Title: A bill to regulate large capacity ammunition feeding devices.

S 498 -- Constitutional Concealed Carry Reciprocity Act

Official Title: A bill to allow reciprocity for the carrying of certain concealed firearms.

S 512 -- The Law Enforcement Access to Data Stored Abroad Act

Official Title: A bill to amend title 18, United States Code, to safeguard data stored abroad from improper government access, and for other purposes.

S 668 -- Data Broker Accountability and Transparency Act

Official Title: A bill to require data brokers to establish procedures to ensure the accuracy of collected personal information, and for other purposes.

S 740

Official Title: A bill to improve the coordination and use of geospatial data.

S 754 -- Cybersecurity Information Sharing Act

Official Title: An original bill to improve cybersecurity in the United States through enhanced sharing of information about cybersecurity threats, and for other purposes.

S 801

Official Title: A bill to amend the National Labor Relations Act to provide for appropriate designation of collective bargaining units.

S 1023

Official Title: A bill to amend the Internal Revenue Code to provide a refundable credit for costs associated with Information Sharing and Analysis Organizations.

S 1027 -- Data Breach Notification and Punishing Cyber Criminals Act

Official Title: A bill to require notification of information security breaches and to enhance penalties for cyber criminals, and for other purposes.

S 1123

Official Title: A bill to reform the authorities of the Federal Government to require the production of certain business records, conduct electronic surveillance, use pen registers and trap and trace devices, and use other forms of information gathering for foreign intelligence, counterterrorism, and criminal purposes, and for other purposes.

S 1158

Official Title: A bill to ensure the privacy and security of sensitive personal information, to prevent and mitigate identity theft, to provide notice of security breaches involving sensitive personal information, and to enhance law enforcement assistance and other protections against security breaches, fraudulent access, and misuse of personal information.

S 1520

Official Title: A bill to protect victims of stalking from violence.

S 1559 -- Pet and Women Safety Act

Official Title: A bill to protect victims of domestic violence, sexual assault, stalking, and dating violence from emotional and psychological trauma caused by acts of violence or threats of violence against their pets.

S 1759 -- Phone Scam Prevention Act

Official Title: A bill to prevent caller ID spoofing, and for other purposes.

HR 47

Official Title: A bill to ensure secure gun storage and gun safety devices.

HR 491 -- Geolocational Privacy and Surveillance Act

Official Title: A bill to amend title 18, United States Code, to specify the circumstances in which a person may acquire geolocation information and for other purposes.

HR 580 -- Data Accountability and Trust Act

HR 612 -- National Right-to-Work Act

Official Title: A bill to preserve and protect the free choice of individual employees to form, join, or assist labor organizations, or to refrain from such activities.

HR 656 -- Online Communications and Geolocation Protection Act

Official Title: A bill to amend title 18, United States Code, with respect to disclosures to governments by communications-related service providers of certain information consisting of or relating to communications, and for other purposes.

HR 689 -- Surveillance Order Reporting Act

Official Title: A bill to permit periodic public reporting by electronic communications providers and remote computer service providers of certain estimates pertaining to requests or demands by Federal agencies under the provisions of certain surveillance laws where disclosure of such estimates is, or may be, otherwise prohibited by law.

HR 699 -- Email Privacy Act

Official Title: A bill to amend title 18, United States Code, to update the privacy protections for electronic communications information that is stored by third-party service providers in order to protect consumer privacy interests while meeting law enforcement needs, and for other purposes.

HR 719 -- TSA Office of Inspection Accountability Act

Official Title: A bill to require the Transportation Security Administration to conform to existing Federal law and regulations regarding criminal investigator positions, and for other purposes.

HR 752 -- Large Capacity Ammunition Feeding Device Act

Official Title: A bill to prohibit the transfer or possession of large capacity ammunition feeding devices, and for other purposes.

HR 791 -- Cell Phone Freedom Act

Official Title: A bill to prohibit the unauthorized remote shut down of a cellular phone.

HR 798 -- Responsible Skies Act

Official Title: A bill to amend the FAA Modernization and Reform Act of 2012 to prohibit the flying of unmanned recreational aircraft near commercial airports.

HR 827 -- Robo Calls Off Phones (Robo COP) Act

Official Title: A bill to direct the Federal Trade Commission to revise the regulations regarding the Do-not-call registry to prohibit politically-oriented recorded message telephone calls to telephone numbers listed on that registry.

HR 950 -- Prohibiting Automated Traffic Enforcement Act

Official Title: A bill to amend title 23, United States Code, to prohibit automated traffic enforcement, and for other purposes.

HR 1385

Official Title: A bill to provide for a legal framework for the operation of public unmanned aircraft systems, and for other purposes.

HR 1431

Official Title: A bill to amend the National Labor Relations Act and the Railway Labor Act to prohibit the preemption of State stalking laws.

HR 1432

Official Title: A bill to amend the National Labor Relations Act and the Railway Labor Act to prohibit the preemption of State identity theft laws.

HR 1560 -- Protecting Cyber Networks Act

Official Title: A bill to improve cybersecurity in the United States through enhanced sharing of information about cybersecurity threats, and for other purposes.

HR 1646 -- Homeland Security Drone Assessment and Analysis Act

Official Title: A bill to require the Secretary of Homeland Security to research how small and medium sized unmanned aerial systems could be used in an attack, how to prevent or mitigate the effects of such an attack, and for other purposes.

HR 1704 -- Personal Data Notification and Protection Act

Official Title: A bill to establish a nation data breach notification standard, and for other purposes.

HR 1731 -- National Cybersecurity Protection Advancement Act

Official Title: A bill to amend the Homeland Security Act of 2002 to enhance multi-directional sharing of information related to cybersecurity risks and strengthen privacy and civil liberties protections, and for other purposes.

HR 1746 -- Truth in Employment Act

Official Title: A bill to amend the National Labor Relations Act to protect employer rights.

HR 1766

Official Title: A bill to amend the Equal Credit Opportunity Act to repeal a small business loan data collection requirement.

HR 1767

Official Title: A bill to amend the National Labor Relations Act to require that lists of employees eligible to vote in organizing elections be provided to the National Labor Relations Board.

HR 1768

Official Title: A bill to amend the National Labor Relations Act with respect to the timing of elections and pre-election hearings and the identification of pre-election issues.

HR 1770

Official Title: A bill to require certain entities who collect and maintain personal information of individuals to secure such information and to provide notice to such individuals in the case of a breach of security involving such information, and for other purposes.

HR 1893

Official Title: A bill to amend the National Labor Relations Act to modify the authority of the National Labor Relations Board with respect to rulemaking, issuance of complaints, and authority over unfair labor practices.

HR 1939 -- No Armed Drones (NADA) Act

Official Title: A bill to amend the FAA Modernization and Reform Act of 2012 to establish prohibitions to prevent the use of an unmanned aircraft system as a weapon while operating in the national airspace system, and for other purposes.

HR 2246

Official Title: A bill to amend chapter 44 of title 18, United States Code, to update certain procedures applicable to commerce in firearms and remove certain Federal restrictions on interstate firearms transactions.

HR 2283

Official Title: A bill to require face to face purchases of ammunition, to require licensing of ammunition dealers, and to require reporting regarding bulk purchases of ammunition.

HR 2909 -- Protecting Firefighters and Promoting Innovation Act

Official Title: A bill to establish an interagency working group to study the use of unmanned aircraft systems for wildland firefighting, and for other purposes.

HR 3025 -- Wildfire Airspace Protection Act

Official Title: A bill to amend title 18, United States Code, to provide a criminal penalty for launching drones that interfere with fighting wildfires affecting Federal property, and for other purposes.

This monthy report is p rovided for NCISS by ...

...until next month!

Please contact Francie Koehler for questions or issues regarding private

investigators and Brad Duffy re the same for security professionals.

Francie Koehler - Investigations -- or -- Brad Duffy - Security

Permission granted to repost