Earlier this month, another class action lawsuit as a result of FCRA violations was brought to a close. The lawsuit against Ohio-based Vitran Express, Inc. was settled for $2.6 million in damages and originated from a failure to comply with Fair Credit Reporting Act (FCRA) requirements when obtaining criminal records for employment purposes. In accordance with the settlement, around 3,000 applicants are now eligible to receive payments between $500 and $1,930. Recipients include those who applied to Vitran over a five-year period and had criminal background checks run on them without their knowledge or authorization.
THE LAWSUIT
The principal plaintiff in this case was misidentified as having 27 felony convictions and was denied employment to Vitran without ever being notified of the details in his criminal report. Vitran allegedly obtained the criminal report on the man without his consent after he applied for employment back in 2008. A class action lawsuit was then filed by the plaintiff for all the applicants whose criminal background records were used as a condition for employment.
The principal plaintiff in this case was misidentified as having 27 felony convictions and was denied employment to Vitran without ever being notified of the details in his criminal report. Vitran allegedly obtained the criminal report on the man without his consent after he applied for employment back in 2008. A class action lawsuit was then filed by the plaintiff for all the applicants whose criminal background records were used as a condition for employment.
According to the lawsuit, Vitran violated the FCRA by:
1. Failing to provide written disclosure to applicants that they would obtain criminal background reports
2. Failing to obtain the applicants’ written authorization to obtain such reports
3. Failing to provide copies of such reports to the affected applicants
4. Failing to provide a summary of the applicants’ FCRA rights to review and correct such reports before the company takes any adverse employment action based on the contents of the reports
PREVENTION – INITIAL STEPS
To avoid similar situations from occurring within your own company, it is important to make sure your background checks are in accordance with FCRA regulations. Before acquiring a criminal background report, applicants must be notified and must provide the employer with authorization. The written authorization and disclosure needs to be on a separate form that does not include an application for employment. The FCRA Section 604 says the disclosure must be in a document that “consists solely” of the disclosure for a background check.
To avoid similar situations from occurring within your own company, it is important to make sure your background checks are in accordance with FCRA regulations. Before acquiring a criminal background report, applicants must be notified and must provide the employer with authorization. The written authorization and disclosure needs to be on a separate form that does not include an application for employment. The FCRA Section 604 says the disclosure must be in a document that “consists solely” of the disclosure for a background check.
PREVENTION – ADVERSE ACTION
If the information found in the background check, even just in part, is a determining factor in a decision not to hire (or not to promote, etc), adverse action must be followed (FCRA Section 615). The first step, prior to any adverse action, includes notifying the applicants of the adverse action and providing them with a copy of the report and the “Summary of Rights” under the FCRA.
If the information found in the background check, even just in part, is a determining factor in a decision not to hire (or not to promote, etc), adverse action must be followed (FCRA Section 615). The first step, prior to any adverse action, includes notifying the applicants of the adverse action and providing them with a copy of the report and the “Summary of Rights” under the FCRA.
The second step in the adverse action process includes sending the applicant a second notice with the following information:
· State that the adverse action is based in whole or in part on the information contained in the background check provided by the Consumer Reporting Agency (CRA)
· That the CRA did not make the decision and cannot provide specific information about the basis of the decision
· Include the name, address and toll free number of the CRA
· State that the individual has a right to dispute the accuracy of the information
· State that the individual has a right to request a free copy of the report within 60 days
