Written By Attorney Lester Rosen, Founder & CEO of Employment Screening Resources (ESR)
A Florida law firm filed federal class action lawsuits in the same court against three separate national employers on the same day, with two of them naming the same consumer as the lead plaintiff, alleging violations of the federal Fair Credit Reporting Act (FCRA) by failure to obtain a valid background check consent on an online application process.
The three complaints brought on behalf of individual plaintiffs as well a class of similarly situated individuals essentially allege the same type of violation—that the employer failed to obtain a valid consent on a standalone form that did not contain extraneous information. The FCRA is the federal law that regulates background checks of job applicants by third party background screening firms on behalf of employers.
In Mack vs. Panera, LLC, the lawsuit alleges that the defendant is a national bakery-café chain. The plaintiff applied using an online system and the online system did not have a background check consent authorization form specifically for a “consumer report,” which is the legal name for an employment background check. According to the legal complaint filed, the closest language to a consent also discussed “at will” employment as well as additional matters unrelated to the background report. Mack vs. Panera, LLC is Case No. 0:14-cv-61672-WJZ in United States District Court Southern District of Florida Broward Division.
In Mack vs. American Multi-Cinema, Inc. (AMC), the same plaintiff alleged that she applied online for employment at the company that has more than 300 locations nationwide. In a similar allegation, the class action alleges that the online application process did not contain standalone consent but had other language related to employment and the employment process. Mack vs. American Multi-Cinema, Inc. (AMC) is Case No. 0:14-cv-61676-DPG in United States District Court Southern District of Florida Broward Division.
In a third case, Rumph, vs. Nine West Holdings, a complaint was filed against a national retail chain alleging consent language was part of a web page that contained a number of links to Nine West information on the website. Rumph, vs. Nine West Holdings is Case No. 0:14-cv-61673-UU in United States District Court Southern District of Florida Broward Division.
The three class action lawsuits were all filed by Attorney Richard Celler in Davie, Florida.
These three cases are just the latest in a series of class action lawsuits filed against employers alleging a failure to adhere to the basic requirements set forth in the FCRA. Employers are being sued in increasing numbers for violations such as failure to obtain consent, failure to utilize a legal form for consent, failure to engage in adverse action process, or utilizing outdated notice forms.
Class action lawsuits typically seek damages on behalf of all consumers who were treated in the same fashion. Where the action that forms the basis of the lawsuit is alleged to be willful, a class action suit can seek from $100 to $1,000 per member of the class for each violation of the FCRA. Because large national employers may have thousands of applicants, the allegations of damages can quickly mount up. Such lawsuits also request attorney’s fees and costs.
In addition, class action lawsuits also nearly always include claims for punitive damages. The U.S. Supreme Court in Safeco vs. Burr 551 U.S. 47 (2007) ruled that an entity can face punitive damages if it acts willfully under the FCRA by either knowingly or recklessly disregarding its statutory duty. Even if a screening firm or employer believes it is acting lawfully that is NOT a protection from an allegation of willful violation of the FCRA and exposure to punitive damages if the defendant should have known it was acting out of compliance.
One resource available to assist employers with FCRA compliance is a joint publication from the U.S. Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission (FTC) titled ‘Background Checks: What Employers Need to Know.’ This publication – which explains how compliance with the FCRA and anti-discrimination laws intersect when employers use background checks – is available at http://business.ftc.gov/documents/0487-background-checks-what-employers-need-know.
As reported earlier on ESR News, another FCRA class action lawsuit filed July 3, 2014 in a Georgia federal court alleged that rent-to-own retailer Aaron’s Inc. ran background checks on employees and job applicants without providing copies of the reports and took adverse employment action and without giving them access to the reports or informing them of their rights under the FCRA. A copy of the class action lawsuit Antoine v. Aaron’s, Inc., Case No. 1:14-cv-02120, is available at http://thejordanfirm.com/wp-content/uploads/2014/07/1-main.pdf.
Class Action Lawsuits Involving Background Checks
The Employment Screening Resources® (ESR) News Blog has reported on numerous other class action lawsuits involving FCRA violations with background checks. To read more ESR News blogs about class action lawsuits, visit https://www.esrcheck.com/wordpress/tag/class-action-lawsuits/. The trend of class actions lawsuits for failing to perform background checks properly becoming even more prevalent was one of the ESR Top Ten Background Check Trends for 2014. To see the complete list of emerging and influential trends in screening, visit https://www.esrcheck.com/ESR-Top-Ten-Background-Check-Trends. For more information about background checks, visit https://www.esrcheck.com, call Toll Free 888.999.4474, or email [email protected].