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From Monserrat Miller
A class action lawsuit has been filed against Whole Foods Market alleging violations of the Fair Credit Reporting Act (FCRA) in the U.S. District Court Northern District of California (Gezahegne v. Whole Foods Market California, Inc.; 4:14-cv-00592).
The complaint alleges Whole Foods Market obtained consumer reports without a valid disclosure and authorization due to extraneous language in the notice. The complaint alleges the following:
- Plaintiff and other similarly situated individuals executed online authorization forms to obtain a consumer report as part of the employment application process from January 2009 to present.
- The disclosure and authorization forms are invalid because Whole Foods Market included liability release language and therefore the forms did not “consist solely of the disclosure.”
- Not only are the forms invalid, but the actions by Whole Foods Market trigger statutory damages in the amount of up to $1,000/individual for whom a consumer report was procured based on the form.
The relevant language of the form reads, “I hereby authorize Whole Foods Market to thoroughly investigate my references, work record, education and other matters related to my suitability for employment and, further, authorize the references I have listed to disclose to the company any and all letters, reports, and other information related to my work records, without giving me prior notice of such disclosure. In addition, I hereby release the company, my former employers and all other persons, corporations, partnerships and associations from any and all claims, demands or liabilities arising out of or in any way related to such investigation or disclosure (emphasis added).”
The complaint alleges violations of the FCRA requirement that prior to procuring a consumer report on an applicant for employment an employer provide a clear and conspicuous disclosure and obtain the applicant’s written authorization. Furthermore, that the disclosure consist solely of the disclosure. (FCRA section 604(b)(2)).
The courts will decide this particular matter and this matter is in the early stages as it was filed just this month. As a general rule, employers should be cognizant of their disclosure and authorization form as releases of liability or disclaimers regarding the consumer reports can be problematic. The FCRA places responsibility for the disclosure and authorization form on the employer. In some instances, background screening companies may handle such for an employer, but the ultimate responsibility for the form lies with the user procuring the report or causing the report to be procured.
Charlotte, NC joins the numerous jurisdictions that ban the question, “Have your ever been arrested, convicted, charge with a crime
Charlotte City Manager Ron Carlee has removed the box on city job applications that asks candidates to disclose their criminal records.
The move puts Charlotte among a growing roster of cities, including Durham, Seattle and Minneapolis, that have eliminated the question on applications to make it easier for people with criminal histories to get hired.Read more here: http://www.charlotteobserver.com/2014/02/28/4731175/charlotte-wont-ask-about-convictions.html#storylink=cpy
Senator Elizabeth Warren has introduced legislation that will ban credit reports for employment purposes. The bill is known as Equal Employment for All would prohibit employers from using credit reports to make employment hiring decisions. According to Senator Warren:
It was once thought a credit history would provide insight into a person’s character and today, many companies routinely require credit reports from job applicants, but research has shown that an individual’s credit rating has little to no correlation with his or her ability to succeed in the workplace. A bad credit rating is far more often the result of unexpected medical costs, unemployment, economic downturns, or other bad breaks than it is a reflection on an individual’s character or abilities. Families have not fully recovered from the 2008 financial crisis, and too many Americans are still searching for jobs. This is about basic fairness — let people compete on the merits, not on whether they already have enough money to pay all their bills.
Hunton & Williams is offering a complimentary webinar on “Criminal Background Checks in the Hiring Process: the Escalating Risks”
Employers’ use of criminal background checks in the hiring process is creating growing exposure to liability on several fronts.
Thursday, January 16, 2014
10:00 a.m. – 11:00 a.m. PT
(1:00 p.m. – 2:00 p.m. ET)
From the Hunton Employment and Labor Perspectives, a recap of 2013 FCRA Class Settlements. We have seen a number of significant cases this year involving both employers and consumer reporting agencies.
Roe v. Intellicorp Records, Inc., Civ. No. 1:12CV2288-JG (N.D. Ohio): in this consolidated class action, plaintiffs accused two CRAs of providing inaccurate criminal background reports to employers that caused the class of applicants to suffer adverse actions, and of not notifying them at the time defendants provided the consumer reports to prospective employers. The case settled on November 12, 2013, when defendants agreed to pay $18.6 million to settle the FCRA claims.
Here is the latest update on websites such as Slammer, MugShots, etc. These websites publish your mug shot whether you are found guilty of not. Then when you ask them to remove it, they force you to pay for removal. As one victim explained, even if you pay the EXTORTION to have your mug shot removed, it is just displayed on another.
Many people find out that after a criminal conviction, employment is almost impossible. The article below details the pain!
“There are a lot of people who have done one stupid thing and been caught for it when they are youth, and they have this economic death sentence around their neck.”
—Ed Monahan, public defender in Kentucky
The implications of a criminal record vary from state to state, with layers of penalties imposed at the federal and state levels. A criminal record can affect housing, employment and educational opportunities. People convicted of drug crimes or sex offenses can be barred from public housing or access to Section 8 housing vouchers. Private landlords can refuse to rent to people with a criminal record, and employers are under no obligation to hire them. In many states, people with felony convictions have limited access to licenses for everything from hunting to plumbing to selling theater tickets.
Please read the complete article “Punished for Life”
Here is a good recap from Lexology:
CIR has sent updated forms this year. If you need copies, please let us know.
The Consumer Financial Protection Bureau, which now has primary rulemaking responsibility for the Fair Credit Reporting Act, has released new regulations requiring employers to update certain FCRA-mandated forms by January 1. The changes consist primarily of substituting the CFPB for the Federal Trade Commission as the point of contact for questions regarding consumers’ rights under the FCRA.
You can find the forms:
Before January 1, 2013, employers should substitute the new FCRA Summary of Rights for the one currently being used when they: (1) enclose the form with the “pre-adverse action” notice; and (2) provide the form with required disclosures for investigative consumer reports. Because of the intensive focus on background check programs by the Equal Employment Opportunity Commission (EEOC)15 and the wave of new state laws (e.g., the new laws in Vermont16 and Indiana17), it is also an opportune time for employers to consider thoroughly assessing their credit and criminal record-based screening policies and procedures for opportunities to fortify compliance with all applicable laws.
The new regulations require the adoption of modified versions of the following three forms, the first of which is most significant for employers:
- “A Summary of Your Rights Under the Fair Credit Reporting Act.” If an employer relies on information in a consumer report or an investigative consumer report to make an adverse decision about a prospective or current employee, the employer must follow strict guidelines in notifying the individual of the decision. The employer must provide the individual with a copy of the consumer report and written information describing the individual’s rights under the FCRA, known as the General Summary of Consumer Rights. This form must be provided to the subject of a consumer report in two scenarios:
- Along with a “pre-adverse action” notice, and
- Along with disclosure notices when obtaining any “investigative consumer report.”
It is advisable for employers to include this form with “adverse action” notices, as well. Prior to January 1, 2013, employers should switch over to the new FCRA Summary of Rights when providing pre-adverse and adverse action letters in lieu of the FTC form currently in use. The newly updated form is available at http://www.ecfr.gov/graphics/pdfs/er21de11.019.pdf .
Additionally, the following two forms have also been modified:
- “Notice to Users of Consumer Reports: Obligations of Users Under the FCRA.” This is a form that consumer reporting agencies must provide to those who use their services, such as employers.
- “Notice to Furnishers of Information: Obligations of Furnishers Under the FCRA.” The FCRA requires consumer reporting agencies to provide this notice to providers of information in certain situations, such as re-investigations triggered by a prospective employee’s dispute of the information.
Why Conduct a Background Check?
While there may be rigorous requirements mandating how to conduct a criminal background check rather than whether to conduct one, many employers find it prudent to undertake them. Taking such appropriate initial steps in screening prospective employees can go a long way toward 1) verifying that employees are qualified and do not have a propensity to cause harm, thereby mitigating risks of negligent hiring claims; and 2) minimizing potential liability. However, employers should take action now in adopting the new forms required by the CFPB to ensure compliance prior to the January 1, 2013, deadline. ” (from Lexology-Nexsen Pruet)
Sesame Street has a toolkit to help families explain and deal with the incarceration of parents. It is sad thing but a reality when more Americans are incarcerated than any other country in the world. Read this New York Times article for greater detail with the rate of incarceration in the USA-”US Prison Population Dwarfs that of other Nations“.
Here is the link to activities and storybooks to help the children. Little Children-Big Challenges-Incarceration
Only 6 states outlaw employers ability to look at an applicant’s facebook page. California and Illinois have joined the ranks of Michigan, New Jersey, Maryland, and Delaware in passing state laws against the practice.
To read the full article, click here