Compliance When Conducting Employment Background Checks

With the new amendments to the Fair Credit Reporting Act
(“FCRA”) Justice _scaleregarding
employment background checks
, the number of cases filed
continues to grow at a rapid pace.  The Equal Employment
Opportunity Commission (“EEOC”), the agency in charge of spear
heading these amendments, is requiring stringent compliance of
employers when
accessing consumer reports
, increasing the number of lawsuits
filed alleging violations of the FCRA. 

In a case filed against Advance Auto Parts (“Advance”) in
Roanoke, Virginia a consumer alleged in a class action suit that
the auto parts retailer failed to comply with the amendments to the
FCRA when conducting a background check into a potential employee
and then terminated him based on the information obtained in the
report shortly after he began employment.  John Hamilton
Stinson v. Advance Auto Parts Inc. 2012-cv-0433 (W. Dist.
Virginia).
  
The case, filed in September 2012, alleged that when the plaintiff
applied for a job with the auto retailer it failed to adhere to the
requirements of the FCRA when conducting a background check into
the applicant’s criminal
and credit history
.  According to the plaintiff, during
the hiring process, Advance failed to properly obtain his written
consent to access his credit file in response to his
application.  After reviewing his application, Advance hired
the plaintiff and he began employment for the company.  After
just 10 days of employment, Advance received information on Stinson
from the background check it conducted and he was terminated based
on the information contained in his report. 

The plaintiff argued Advance again failed to comply with the
FCRA when it did not
provide the consumer with a copy of the report
used to take
adverse action against him.  The consumer report Advance
reviewed in making the decision to terminate the plaintiff included
several felony convictions of a person with the same last name and
did not in fact belong to the plaintiff.  The lawsuit went on
to state that Advance frequently acted on adverse background checks
without providing employees with a copy of the information
contained in the report beforehand as is required by the new
amendments to the FCRA.  The plaintiff said he obtained the
information by contacting the background check company
directly. 

The new amendments to the law specify that an employer must
provide the employee with notice of its intention to perform a
background check and get written consent from the employee prior
accessing the consumer file.  After receiving a copy of the
consumer report, the employer must provide the employee with notice
that it intends to use the information contained in the report in
the hiring process.  Lastly, the employer must notify the
employee of his or her rights pursuant to the FCRA and provide a
copy of the consumer report used, in the event it terminates
employment based on information gathered from the report. 
While Advance has settled the case agreeing to pay $100 each to
more than 2,500 individuals who were turned down after applying for
a job based on information obtained during the background check, it
refuses to admit non-compliance or fault.

If you feel your rights have been violated under the FCRA during
the employment process contact SmithMarco P.C. for a  free
case review.