Employers that fail to comply with the federal Fair Credit Reporting Act (FCRA) – by way of intentional or negligent errors in providing job applicants with proper disclosure and notice of background investigations – could be liable to plaintiffs for millions of dollars in statutory damages.
Under FCRA, employers who opt to perform criminal record and credit checks on job candidates or employees must:
- Notify the candidate or employee of the intent to use a reporting agency to perform the background investigation, making sure that the person is fully aware of its use prior to having him or her agree to the investigation;
- Obtain express, signed consent to the investigation from the candidate or employee in a way that is “clear and conspicuous” and separate from other sections of a job application;
- Notify the candidate or employee if a decision to deny employment, deny promotion, or terminate is based in some way on the background investigation findings; and
- Supply the candidate or employee with the contact information of the agency that conducted the background investigation, and offer reasonable time time to correct any mistakes contained in the report.
Recently, class action lawsuits have been filed against several well-known companies such as BMW, Express Services, Michaels Stores, Paramount Pictures, and Whole Foods Market over allegations of FCRA violations. Unlawful employee background checks under FCRA can result in statutory damages ranging from $100 to $1,000 for each violation, costing companies millions to settle employees’ claims:
- Dollar General: $4 million (2014)
- Domino’s Pizza: $2.5 million (2013)
- Food Lion: $3 million (2015)
- Home Depot: $1.8 million (2015)
- K-Mart: $3 million (2013)
- Publix Stores: $6.8 million (2014)
- Swift Transportation: $4.4 million (2013)
If you suspect that a potential or current employer has discriminated against you by its improper use of a background investigation or failed to properly comply with state and federal disclosure and notice requirements for background checks, now is the time to pursue and protect your rights. The attorneys in Sommers Schwartz’ Employment Litigation Group can help you assess your FCRA claims and pursue the proper legal action – contact us today.