Crafty plaintiff attorneys continue to attack companies for their use of pre-employment background checks. As previously discussed here, the Ninth Circuit Court of Appeals permitted a prospective employee to bring a class action lawsuit because the employer’s form used for background checks contained a waiver of claims, in violation of the Fair Credit Report Act (“FCRA”), without showing they were harmed by the waiver.
The attack on employers using background checks is going on all across the country. Just recently, a prospective employee in Florida filed a class action lawsuit in Federal court against the United Parcel Service, Inc. (“UPS”), alleging FCRA violations, after he was denied a customer service representative position because of the results of a background check. In that case, the plaintiff is arguing that UPS violated the FCRA by not sharing the results of the background check with him before it revoked the job offer. In a motion seeking to dismiss the case, UPS notes that a letter was sent to the plaintiff by UPS’s credit reporting agency containing the consumer report, along with a description of the plaintiff’s FCRA rights, five days before he was told that the offer was being rescinded. UPS is arguing that the plaintiff does not have standing because he did not suffer a concrete injury, since the required information was provided, albeit from a third party and not UPS directly, and because the consumer report was not inaccurate.
COUNSEL TO MANAGEMENT:
Although UPS may ultimately succeed and get the class action dismissed, it is yet another example of the potential risks employers utilizing pre-employment background checks face. The only way to avoid a potential lawsuit is to ensure that you are following the exact letter of the FCRA. The Federal Trade Commission provides some basic tips for employers regarding the use of background checks here. And of course, employers who have questions regarding their background check process can also contact the experts at The Saqui Law Group for further assistance.