Spring has sprung and hopefully all the April showers will bring May flowers. This is a good time for companies to “spring clean” their documents, processes, and procedures, particularly those that are part of background checks.
If you use background checks as part of your hiring process it can’t be said enough: make sure you have FCRA compliant forms, especially authorization and disclosure forms, in place. I am surprised how often companies give people responsibility for background checks without giving them any sort of training – even if they have had zero experience with background checking. The unsuspecting employees then order checks without authorization or disclosure forms at all, or with forms that do not meet FCRA requirements.
Even those with experience in processing background checks often do not review their forms and information to ensure compliance with the FCRA.
In part, the following text addresses the requirement for a stand-a-lone disclosure:
“(2) Disclosure to consumer”(A) In general. Except as provided in subparagraph (B), a person may not procure a consumer report, or cause a consumer report to be procured, for employment purposes with respect to any consumer, unless –“(i) a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; . . . “
In short, the form cannot be part of any other document such as the authorization form for a background check, employment application, etc. It is important to abide by this provision no matter what the hiring decision is for each applicant as proven in Kenn v. Eascare, LLC. Applicants were given a form that combined the authorization and disclosure form, and it was a two-sided form.
The plaintiff in this case was hired, but sometime later resigned and brought a class action lawsuit against the employer with one of the claims being violations of the FCRA. While a previous court dismissed the claim because there was no “concrete injury”, the appeals court reversed that ruling.
Even if there are no “concrete” injuries with “actual damages,” the FCRA does provide for liability which may not be measurable. This can cost employers $100 – $1,000 for each case in addition to punitive damages, costs, and reasonable attorneys’ fees.
Taking some time for spring cleaning, including reviewing your forms and processes with your legal counsel can go a long way in preventing such liabilities.
ASE Connect
If you need help with your background screening process or would like a compliance review of your process, please contact Susan Chance.
By Susan Chance, courtesy of SBAM-approved partner, ASE. Source: Kenn v. Eascare, LLC:: 2024 :: Massachusetts Appeals Court Decisions :: Massachusetts Case Law :: Massachusetts Law :: US Law :: Justia
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