By Claire Carter, Esq., Associate
Published in FAHROgram July/August 2018 edition

The Fair Credit Reporting Act (“FCRA”), 15 USC § 1681 et seq, provides protection to employees by requiring employers to notify and request written permission from an employee or potential employee when performing a background credit check. The FCRA requires the employer to tell the employee or potential employee that the background credit check may factor into employment-related decisions. The FCRA also requires a “pre-adverse action” notice, meaning an employer cannot make an employment decision based on the background credit check without first providing a copy of the background check to the current or potential employee and allowing that employee a reasonable amount of time to dispute the information.

If an employer fails to follow the FCRA requirements, an employee may be able to seek damages. Many lawsuits and class actions have been brought against employers due to technical violations of the FCRA, but recent court decisions have been favorable to employers. For example, in Lewis v. Sw. Airlines Co., 2018 WL 400775, at *1 (N.D. Tex. Jan. 11, 2018), Lewis sued Southwest Airlines for violating the FCRA by failing to provide the FCRA disclosures to him in a stand-alone document when he applied for employment, and for including extraneous material in the disclosures. The Court found the inclusion of the extraneous information in the disclosures violated the FCRA, but concluded that the violation was not willful, as there were no appeals court decisions in existence addressing this issue at the time Lewis applied for employment.

In Branch v. Gov’t Employees Ins. Co., 323 F.R.D. 539 (E.D. Va. 2018), Branch applied for and was offered a job with GEICO, who procured a background report of Branch. GEICO graded her report as “Fail” because of a conviction appearing in the background report. A GEICO representative spoke to Branch by telephone, during which Branch alleged that GEICO rescinded the job offer. GEICO later sent her a pre-adverse action notice. Branch sued GEICO as a class action for violating the FCRA for failing to provide the pre-adverse action notice prior to grading her with the “Fail,” which Branch alleged was a final decision. The Court denied certification of the class, stating that the “Fail” grade was not an adverse action, but rather it was GEICO’s rescinding of the job offer based on the “Fail” grade, which did not necessarily happen to all potential class members.

Employers in Florida should be aware of the FCRA requirements and any related Florida statutes. In order to avoid lawsuits alleging FCRA violations, employers should have their background check consent forms reviewed by an attorney to ensure compliance. Employers should also timely provide pre-adverse notices and ensure employees involved in the hiring and firing process are properly trained.

Claire Carter is an associate with Saxon|Gilmore. She practices in the areas of Creditors’ Rights, Commercial and Real Estate Litigation and Commercial and Real Estate Transactions. She can be reached at 813-314-4527 or ccarter@saxongilmore.com.

 

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