with Employee Background Checks
agencies to conduct background
checks on applicants and employees
have increasingly become targets of
lawsuits alleging violations of the
Federal Fair Credit Reporting Act
(FCRA) and related state laws. These
statutes which impose highly specific
disclosure, authorization and notice
requirements when obtaining information
from consumer reporting agencies are
technical minefields requiring aggressive
compliance efforts and exhaustive
attention to detail. Minor missteps bear
low hanging fruit for plaintiffs' attorneys,
and the recent prevalence of class
action FCRA claims has proven costly
for several major employers, including
Publix ($6.8 million settlement), Home
Depot ($1.8 million settlement) and
K-Mart ($3 million settlement).
The following five points of advice,
while not a comprehensive guide to
compliance, can help avert common
mistakes and offer a strong first line of
defense against FCRA liability.
standalone disclosure that a consumer
report may be obtained
a consumer report, or cause a consumer
report to be procured, for employment
purposes with respect to any consumer,
unless... a clear and conspicuous
disclosure has been made in writing to the
consumer at any time before the report
is procured or caused to be procured, in
a document that consists solely of the
disclosure, that a consumer report may
be obtained for employment purposes[.]"
15 U.S.C. § 1681b(b)(2)(A)(i) (emphasis
added).
Because FCRA does not define "clear
and conspicuous," employers and their
attorneys are left looking to other statutes
and case law to patch together factors that
have resulted in findings of clarity and
conspicuousness. While this standard
can be subjective, elements that courts
have considered (under the FCRA or
in other contexts that require clear and
conspicuous disclosures) include, in part:
emphasized in some way (i.e., bold or
capital letters);
made aware of the notice;
language is included; and
drafted, overly technical or otherwise
incomprehensible.
Club, Inc., 695 F. Supp. 2d 689 (S.D.
Ohio 2010).
Accordingly, the disclosure should be
in an easily readable font (both font type
and size), ideally with the "Disclosure"
heading bolded, capitalized, underlined
or otherwise emphasized. The disclosure
should state in plain language, without
extraneous technical or distracting
information or legalese, that the
care and labor and employment law. In addition to drafting
federal Fair Credit and Reporting Act (FCRA) forms and notices
for employers, he counsels clients on all aspects of the FCRA,
state-specific fair credit reporting acts, and matters relating to
background checks under Title VII of the Civil Rights Act and
state-specific fair employment acts.
9 Thurlow Terrace
Albany, New York 12203
Fax: 518.462.4199
icrh.com