On Friday, February 7, 2014, a lawsuit was filed against Whole Foods Market California, Inc., in an effort to create a class action lawsuit against this employer for violating the Fair Credit Reporting Act (FCRA).
The FCRA requires that an employee background screening authorization form have the sole purpose of providing the required FCRA disclosures, and obtaining the consumer’s authorization to perform the employee background check only. It cannot have any general release of liability.
Traditionally, the FTC considered language pertaining to general release of liability to be invalid, but they did not challenge the rest of the authorization for the employee background check. Recently some courts, spurred on by aggressive lawyers seeking large class action settlements, have begun to hear these cases, and some courts have ruled that FCRA disclosures with general liability release language to be “facially invalid”. Last year Domino’s Pizza settled for $2.5 million, although that lawsuit contained some other FCRA disclosure violations as well.
Given the trend, I would advise all employers to ensure that their FCRA Employee Background Screening Disclosures only contain the FCRA required disclosures, and the employee’s authorization to perform the background check. Any other language, such as any general release of liability, should be removed but could be included in your general employment application.
Reliable Background Screening clients have 24/7 access to FCRA-compliant Employee Screening Authorization forms, through our secure client website.
As always, I must disclose that I am not an attorney and cannot provide legal advice (although prominent employment lawyers have told 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 let me know…. I know a few.
Posted by: Rudy Troisi. President, Reliable Background Screening.