This is an article from Fisher and Phillips, Employment Lawyers, regarding the recent FCRA class actions. “The FCRA applies to any business, large or small, that uses a consumer report for employment purposes.”
- Hathaway v. Whole Foods Market California, Inc. alleging that Whole Foods Market’s disclosure violated the FCRA because it contained a waiver;
- Ford v. Chuck E. Cheese’s, alleging that Chuck E. Cheese’s practice of including the notice and authorization as part of a multipage printed employment application violated the FCRA;
- Camacho v. ESA Management LLC, alleging that inclusion of disclosure in an at-will job application violated the FCRA;
- Cox Jr. v. Teletech@home Inc., alleging Teletech violated the FCRA’s pre-adverse action notice requirements;
- White v. Century 21 Department Stores, alleging that Century 21 violated the FCRA by obtaining consumer reports without the requisite notice to and authorization from the applicant or employee;
- Cox v. Ozburn-Hessey Logistics, LLC, alleging a violation of the FCRA’s standalone disclosure requirement where the employment application contained sections regarding the applicant’s background and equal employment opportunity status;
- Poole v. Check ‘N Go, alleging violation of the FCRA’s standalone document requirement where the employer used an online authorization form that contained nine paragraphs spanning two pages and requested certain information from the applicant regarding criminal history, equal employment opportunity status, and other information;
- Rumph v. Nine West Holdings, Inc., alleging a violation of the FCRA where Nine West’s notice did not use the term “consumer report” and contained extraneous language including shipping information, privacy policies, philanthropy opportunities, and other unrelated store information;
- Mack v. Panera, alleging that Panera violated the FCRA’s standalone disclosure requirement because it contained at-will language, hours of work, and a disclaimer;
- Mack v. American Multi-Cinema (AMC), alleging that AMC violated the FCRA because its notice and authorization did not contain the term “consumer report” and because they did not stand alone since they included additional language regarding at-will employment, information regarding hours of work, and a disclaimer; and
- Castro v. Michaels Stores, alleging a violation of the FCRA in that Michaels Stores, Inc.’s notice was embedded in an online web page application and because it included a liability release.”
To read the full article click here, Hyping The “Hyper-technical”
We are changing our reporting standards for background checks. Our standard criminal report will now include:
- 1) Felonies forever
- 2) Misdemeanors for the last 7 years
- 3) Criminal Traffic for the last 3 years, if you also order driving histories, the criminal traffic will no longer be reported.
If your background screening needs required different time frames, please contact us so we may adjust your background to meet your needs.
Although, legislation has not passed in North Carolina, a bill was introduced. The article below provides details on all 28 states with legislation or pending legislation regarding privacy in social media. Interesting how employers allow employees to use their own laptops, cell phones, etc, but are more considered with what is posted.
“Increasing numbers of Americans use social media both on and off the job. Recently, some employers have asked employees to turn over their usernames or passwords for their personal accounts. Some employers argue that access to personal accounts is needed to protect proprietary information or trade secrets, to comply with federal financial regulations, or to prevent the employer from being exposed to legal liabilities. But others consider requiring access to personal accounts an invasion of employee privacy.
State lawmakers introduced legislation beginning in 2012 to prevent employers from requesting passwords to personal Internet accounts to get or keep a job. Some states have similar legislation to protect students in public colleges and universities from having to grant access to their social networking accounts.”
When management fails, work quality deteriorates. USIS is blaming its employees and contractors for sloppy work. The government prosecutes the “little guy” while letting the billionaire management to continue to do sloppy work that WE pay for.
OPM’s crackdown on background check fraud
Two weeks ago, a 34-year-old USIS contractor from South Carolina, became the latest background investigator to plead guilty to charges stemming from falsifying a report. The charge could carry a penalty of five years in prison.
Brian Rapier’s guilty plea garnered numerous headlines coming amid the broader legal woes for the company he worked for — USIS. The Justice Department has accused the company, the government’s largest contractor for providing background investigations, of shortcutting more than 665,000 background checks for more than four years beginning in 2008.
But it’s far from the first time a lone security-clearance investigator has faced tough penalties for falsifying background investigations.
Since 2008, the Office of Personnel Management has been on a crusade to root out falsification in background investigations using the courts. Nearly two dozen background investigators for either OPM or one of its contractors have been criminally prosecuted for misconduct ranging from outright falsifying reports, known as “ghostwriting,” to performing sloppy checks that failed to adhere to OPM’s standards. Many of them have done jail time.
But while the civil case joined by the Justice Department, continues to move forward, a criminal case against USIS for the widespread “dumping” of cases alleged in DOJ’s complaint, now seems increasingly unlikely.
More than half of background investigators convicted of falsifying reports have done jail time — most in the range of three to five months.
But as long as the case against USIS remains a civil matter, company officials cited in the Justice Department’s complaint as being aware of and directing the fraudulent activity likely won’t face the same penalties, said Charles Tiefer, a law professor at the University of Baltimore and a former member of the Commission on Wartime Contracting.
There appears to be a double standard, “when those who defraud the government out of a single quality background investigation are criminally convicted,” he said, “while those who run a system which deprives the government of hundreds of quality background investigations are not.”
To read the full article and its continuing coverage, click here.
Guidance on the use of criminal records.
- An employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended.
- The Guidance builds on longstanding court decisions and existing guidance documents that the U.S. Equal Employment Opportunity Commission (Commission or EEOC) issued over twenty years ago.
- The Guidance focuses on employment discrimination based on race and national origin. The Introduction provides information about criminal records, employer practices, and Title VII.
- The Guidance discusses the differences between arrest and conviction records.
- The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.
- In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.
- The Guidance discusses disparate treatment and disparate impact analysis under Title VII.
- Click here to read the complete guidance
Here is a link to read the numerous EEOC actions. Most are discrimination actions, such as pregnancy discrimination.
Does anyone care about privacy and accuracy in background screening. Hopefully these settlements will impact the background screening industry to provide quality services
Checkmate.com and a background screening company settled allegations by the FTC that the companies failed to provide accurate backgrounds and notifications to employers.
Instant Checkmate violated the FCRA by failing to maintain reasonable procedures to ensure that those using its reports had permissible purposes for accessing
them; furnishing reports to users that it did not have reason to believe had permissible purposes to access them; failing to follow reasonable procedures to assure that its reports were as accurate as possible; and failing to provide FCRA-mandated “User Notices” outlining several important consumer protections.
InfoTrack and its owner, Steve Kaplan, violated the FCRA by failing to use reasonable procedures to assure maximum possible accuracy of consumer report information obtained from sex offender registry records; failing to provide FCRA-required notices; and failing to provide written notices to consumers of the fact that InfoTrack reported public record information to prospective employers, when that information was likely to adversely affect consumers’ ability to obtain employment.
While the politicians debate if Americans can survive on minimum wage, the landlords of NC know that a tenant probably needs to make $14 an hour to afford a modest apartment.
According to the Asheville Citizens Times, “The report found an estimated 49 percent of Asheville renters do not earn enough to afford a two-bedroom unit at the fair market rent.”
To read the story click here
The article below is from EEOC and the Federal Trade Commission
A joint publication of the Equal Employment Opportunity Commission and the Federal Trade Commission
When making personnel decisions — including hiring, retention, promotion, and reassignment — employers sometimes want to consider the backgrounds of applicants and employees. For example, some employers might try to find out about the person’s work history, education, criminal record, financial history, medical history, or use of social media. Except for certain restrictions related to medical and genetic information (see below), it’s not illegal for an employer to ask questions about an applicant’s or employee’s background, or to require a background check.
However, any time you use an applicant’s or employee’s background information to make an employment decision, regardless of how you got the information, you must comply with federal laws that protect applicants and employees from discrimination. That includes discrimination based on race, color, national origin, sex, or religion; disability; genetic information (including family medical history); and age (40 or older). These laws are enforced by the Equal Employment Opportunity Commission (EEOC).
In addition, when you run background checks through a company in the business of compiling background information, you must comply with the Fair Credit Reporting Act (FCRA). The Federal Trade Commission (FTC) enforces the FCRA. This publication explains how to comply with both the federal nondiscrimination laws and the FCRA. It’s also a good idea to review the laws of your state and municipality regarding background reports or information because some states and municipalities regulate the use of that information for employment purposes.
Before You Get Background Information
In all cases, make sure that you’re treating everyone equally. It’s illegal to check the background of applicants and employees when that decision is based on a person’s race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). For example, asking only people of a certain race about their financial histories or criminal records is evidence of discrimination.
Except in rare circumstances, don’t try to get an applicant’s or employee’s genetic information, which includes family medical history. Even if you have that information, don’t use it to make an employment decision. (For more information about this law, see the EEOC’s publications explaining the Genetic Information Nondiscrimination Act, or GINA.) Don’t ask any medical questions before a conditional job offer has been made. If the person has already started the job, don’t ask medical questions unless you have objective evidence that he or she is unable to do the job or poses a safety risk because of a medical condition.
If you get background information (for example, a credit or criminal background report) from a company in the business of compiling background information, there are additional procedures the FCRA requires beforehand:
- Tell the applicant or employee you might use the information for decisions about his or her employment. This notice must be in writing and in a stand-alone format. The notice can’t be in an employment application. You can include some minor additional information in the notice (like a brief description of the nature of consumer reports), but only if it doesn’t confuse or detract from the notice.
- If you are asking a company to provide an “investigative report” – a report based on personal interviews concerning a person’s character, general reputation, personal characteristics, and lifestyle – you must also tell the applicant or employee of his or her right to a description of the nature and scope of the investigation.
- Get the applicant’s or employee’s written permission to do the background check. This can be part of the document you use to notify the person that you will get the report. If you want the authorization to allow you to get background reports throughout the person’s employment, make sure you say so clearly and conspicuously.
- Certify to the company from which you are getting the report that you:
- notified the applicant and got their permission to get a background report;
- complied with all of the FCRA requirements; and
- don’t discriminate against the applicant or employee, or otherwise misuse the information in violation of federal or state equal opportunity laws or regulations.
Using Background Information
Any background information you receive from any source must not be used to discriminate in violation of federal law. This means that you should:
- Apply the same standards to everyone, regardless of their race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). For example, if you don’t reject applicants of one ethnicity with certain financial histories or criminal records, you can’t reject applicants of other ethnicities because they have the same or similar financial histories or criminal records.
- Take special care when basing employment decisions on background problems that may be more common among people of a certain race, color, national origin, sex, or religion; among people who have a disability; or among people age 40 or older. For example, employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee. In legal terms, the policy or practice has a “disparate impact” and is not “job related and consistent with business necessity.”
- Be prepared to make exceptions for problems revealed during a background check that were caused by a disability. For example, if you are inclined not to hire a person because of a problem caused by a disability, you should allow the person to demonstrate his or her ability to do the job – despite the negative background information – unless doing so would cause significant financial or operational difficulty.
When taking an adverse action (for example, not hiring an applicant or firing an employee) based on background information obtained through a company in the business of compiling background information, the FCRA has additional requirements:
- Before you take an adverse employment action, you must give the applicant or employee:
- a notice that includes a copy of the consumer report you relied on to make your decision; and
- a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act,” which you should have received from the company that sold you the report.
By giving the person the notice in advance, the person has an opportunity to review the report and explain any negative information.
- After you take an adverse employment action, you must tell the applicant or employee (orally, in writing, or electronically):
- that he or she was rejected because of information in the report;
- the name, address, and phone number of the company that sold the report;
- that the company selling the report didn’t make the hiring decision, and can’t give specific reasons for it; and
- that he or she has a right to dispute the accuracy or completeness of the report, and to get an additional free report from the reporting company within 60 days.
Disposing of Background Information
Any personnel or employment records you make or keep (including all application forms, regardless of whether the applicant was hired, and other records related to hiring) must be preserved for one year after the records were made, or after a personnel action was taken, whichever comes later. (The EEOC extends this requirement to two years for educational institutions and for state and local governments. The Department of Labor also extends this requirement to two years for federal contractors that have at least 150 employees and a government contract of at least $150,000.) If the applicant or employee files a charge of discrimination, you must maintain the records until the case is concluded.
Once you’ve satisfied all applicable recordkeeping requirements, you may dispose of any background reports you received. However, the law requires that you dispose of the reports – and any information gathered from them – securely. That can include burning, pulverizing, or shredding paper documents and disposing of electronic information so that it can’t be read or reconstructed. For more information, see Disposing of Consumer Report Information? Rule Tells How.
To find out more about federal antidiscrimination laws, visit www.eeoc.gov, or call the EEOC toll-free, 800-669-4000 (voice); TTY: 800-669-6820. The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information. The EEOC investigates, conciliates, and mediates charges of employment discrimination, and also files lawsuits in the public interest. For specific information on:
Preemployment medical inquiries: see Preemployment Disability-Related Questions and Medical Examinations.
Medical inquiries during employment: see Questions and Answers: Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA).
Genetic inquiries, including inquiries about family medical history: see Background Information for EEOC Final Rule on Title II of the Genetic Information Nondiscrimination Act of 2008.
EEOC recordkeeping requirements: see Summary of Selected Recordkeeping Obligations in 29 C.F.R. Part 1602.
Using arrest and conviction records to make employment decisions: see Questions and Answers about EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII.
Whether arrest and conviction records act as an automatic bar to all employment: see Reentry Myth Buster: On Hiring/Criminal Records Guidance.
Background on the EEOC for small businesses: see Get the Facts Series: Small Business Information.
To find out more about federal laws relating to background reports, visit www.business.ftc.gov, or call the FTC toll-free, 1-877-FTC-HELP (1-877-382-4357); TTY: 1-866-653-4261. For specific information on employment background reports, see:
The FTC works to prevent fraudulent, deceptive, and unfair business practices in the marketplace and to provide information to businesses to help them comply with the law.
New Releases are required. Please contact our office for new forms.
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.