It appears that most Employment Lawyers and most Human Resources professionals are not paying attention to the ongoing court filings involving Whole Foods Market California, Inc. I have come to this conclusion, based upon the numerous conversations I have had with prominent Employment Lawyers and Human Resources Directors over the past several weeks. None of these dozen or more legal and HR professionals that I spoke with had any clue about the main issue being raised in this Whole Foods Class Action Lawsuit. So here is an update that hopefully will begin to place this topic on everyone’s “radar.”
It’s been almost 3 months since I posted information about the legal steps being filed to obtain a class action lawsuit against Whole Foods Market California, Inc. Since my initial posting in early February, the law firm of Blumenthal, Nordrehaug Bhowmik, representing Patrick Hathaway, a former employee of Whole Foods Market, filed a Class Action Complaint on March 21, 2014, in the U.S. District Court – Southern District of California. The complaint charges that Whole Foods Market California, Inc. violated the Fair Credit Reporting Act (FCRA), when it obtained “facially invalid” FCRA Disclosure and Authorizations (“consent forms”) from its employee applicants to perform background checks for employment purposes.
The reason these FCRA “consent forms” are being claimed to be “facially invalid” is because Whole Foods Market allegedly included general liability release language in its FCRA forms. The FCRA prohibits this practice as it requires that “consent forms” grant only the authority to perform the employment background check, and that it be a separate and distinct form with the sole purpose being the individual consumer granting authorization for the background check. The “consent form” cannot include any additional information or agreements, such as a general release of liability for the employer.
The FCRA (Fair Credit Reporting Act) regulates and governs employee background checks, and it imposes numerous, specific disclosure requirements upon employers who perform background checks through a third party, usually a background screening company (whether on existing employees or new employee applicants). The FCRA regulates employee background checks, even when the employer does NOT obtain a credit report, i.e., when an employer only obtains a criminal background check, these consumer reports are still governed by the FCRA, and the employer must ensure that they properly perform all required disclosures as mandated by the FCRA.
A very simple fix for employers everywhere would be to review their FCRA “consent forms” and remove any language that does not pertain to the individual consumer granting consent for their employee background check (while of course, also keeping all requisite disclosures as required under the FCRA). If you have even just one sentence that mentions the individual consumer granting a general release of liability to the employer, I would strongly urge you to remove that language from your FCRA “consent form.”
As always, I must disclose that I am not an attorney and cannot provide legal advice (although many prominent employment lawyers tell me I know more about this area of law than most employment lawyers). My blogs are provided for informational purposes only, and you should always consult a licensed attorney for legal advice. If you need a referral for a great employment lawyer, just contact me…. I know quite a few.
Posted by: Rudy Troisi. President, Reliable Background Screening.
