Written By ESR News Blog Editor Thomas Ahearn
A class action lawsuit filed in a Florida federal court alleges that grocery store chain Whole Foods Market Group, Inc. performed illegal background checks on prospective and existing employees in violation of the federal Fair Credit Reporting Act (FCRA), according to an article on TopClassActions.com. (UPDATE: A Motion to Dismiss the lawsuit was denied on March 30, 2015. Click here for ruling.)
(Note to ESR Newsletter Subscribers: The correct link to the blog ‘U.S. Retail Workers Lead World in Employee Theft’ contained in the February 2015 newsletter is at http://www.esrcheck.com/wordpress/2015/01/29/u-s-retail-workers-lead-world-employee-theft/.)
In the class action lawsuit filed on December 4, 2014, TopClassActions.com reports the plaintiff claimed to have worked at a Whole Foods in Tampa, Florida and that the company performed a background checks for employment purposes without following the guidelines laid out in the FCRA.
TopClassActions.com reports that the plaintiff – Colin Speer of Florida – “is charging Whole Foods with violating the FCRA by failing to make proper disclosure and failing to obtain proper authorization of the pending background checks.” The FCRA regulates background checks for employment purposes.
TopClassActions.com reports that, according to the class action lawsuit, a company “is required to disclose to its employees — in a document that consists solely of the disclosure — that it may obtain a consumer report on them for employment purposes” before performing a background check.
TopClassActions.com reports the plaintiff claimed Whole Foods failed to follow this requirement. “While the use of consumer report information for employment purposes is not per se unlawful, it is subject to strict disclosure and authorization requirements under the FCRA,” the class action lawsuit stated.
In addition, TopClassActions.com reports the plaintiff also alleges in his class action lawsuit that the defendant “unlawfully inserted liability release provisions into forms purporting to grant [Whole Foods] authority to obtain and use consumer report information for employment purposes.”
TopClassActions.com reports this alleged practice violates the “plain language of the FCRA” and the class action lawsuit explains that this resulted in Whole Foods not having the proper authorization to obtain consumer reports on its employees since the disclosure forms did not comply with the FCRA.
The plaintiff in the class action lawsuit wishes to represent a class of “all Whole Foods’ employees or prospective employees who were subject of a consumer report that was procured by Whole Foods within five years of the filing of the complaint through the date of final judgment in this action.”
“According to the allegations, the form signed by the consumer was part of some online system. All the facts are not currently known but regardless of how the case ends up, the allegations create food for thought for employers,” commented Attorney Lester Rosen, Founder and CEO of Employment Screening Resources® (ESR).
“Given the legally sensitivity of consent forms for background checks, it is a critical function that an employer should not leave it up to a third party Applicant Tracking System or employment site portal to provide the forms,” explained Rosen, author of ‘The Safe Hiring Manual,’ a comprehensive guide to background checks.
“If the forms fail to dot every ‘i’ or cross every ‘t’ exactly right, it is the employer who could get sued,” Rosen said. “This class action lawsuit underscores the fact that background checks are heavily legally regulated and third parties that are not experts in the area can get an employer potentially in hot water.”
The class action lawsuit is Colin Speer v. Whole Foods Market Group, Inc. filed in the U.S. District Court for the Middle District of Florida, Tampa Division. The article is at http://topclassactions.com/lawsuit-settlements/lawsuit-news/45576-whole-foods-hit-illegal-background-check-class-action/.
NOTE: Employment Screening Resources (ESR) reminds readers of this ESR News blog that any allegations made in a class action lawsuit are not proof that a business or Consumer Reporting Agency (CRA) violated any law, rule, or regulation. There have been only allegations in the pleading stage and no factual adjudications. The fact that a demand for a jury trial has been made in the class action lawsuit does not mean there has been a finding of any liability or that any facts have been determined or any settlement entered into at the current time.
ESR TOP TEN BACKGROUND CHECK TRENDS FOR 2015 WEBINAR
Employment Screening Resources® (ESR) will present a complimentary webinar hosted by ESR Founder and CEO Attorney Lester Rosen titled ‘ESR Top Ten Background Check Trends for 2015’ on Wednesday, January 21, 2015 from 11:00 AM to 12:00 PM Noon Pacific Time. To register for this webinar, please visit the registration link at https://attendee.gotowebinar.com/register/3656006267617568513.