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Compliance When Conducting Employment Background Checks

On Behalf of | Jan 2, 2013 | Consumer Protection

With the new amendments to the Fair Credit Reporting Act (“FCRA”) regarding employment background checks, the number of cases filed continues to grow at a rapid pace.  The Equal Employment Opportunity Commission (“EEOC”), the agency in charge of spear heading these amendments, is requiring stringent compliance of employers when accessing consumer reports, increasing the number of lawsuits filed alleging violations of the FCRA.

In a case filed against Advance Auto Parts (“Advance”) in Roanoke, Virginia a consumer alleged in a class action suit that the auto parts retailer failed to comply with the amendments to the FCRA when conducting a background check into a potential employee and then terminated him based on the information obtained in the report shortly after he began employment.  John Hamilton Stinson v. Advance Auto Parts Inc. 2012-cv-0433 (W. Dist. Virginia).

The case, filed in September 2012, alleged that when the plaintiff applied for a job with the auto retailer it failed to adhere to the requirements of the FCRA when conducting a background check into the applicant’s criminal and credit history.  According to the plaintiff, during the hiring process, Advance failed to properly obtain his written consent to access his credit file in response to his application.  After reviewing his application, Advance hired the plaintiff and he began employment for the company.  After just 10 days of employment, Advance received information on Stinson from the background check it conducted and he was terminated based on the information contained in his report.

The plaintiff argued Advance again failed to comply with the FCRA when it did not provide the consumer with a copy of the report used to take adverse action against him.  The consumer report Advance reviewed in making the decision to terminate the plaintiff included several felony convictions of a person with the same last name and did not in fact belong to the plaintiff.  The lawsuit went on to state that Advance frequently acted on adverse background checks without providing employees with a copy of the information contained in the report beforehand as is required by the new amendments to the FCRA.  The plaintiff said he obtained the information by contacting the background check company directly.

The new amendments to the law specify that an employer must provide the employee with notice of its intention to perform a background check and get written consent from the employee prior accessing the consumer file.  After receiving a copy of the consumer report, the employer must provide the employee with notice that it intends to use the information contained in the report in the hiring process.  Lastly, the employer must notify the employee of his or her rights pursuant to the FCRA and provide a copy of the consumer report used, in the event it terminates employment based on information gathered from the report. While Advance has settled the case agreeing to pay $100 each to more than 2,500 individuals who were turned down after applying for a job based on information obtained during the background check, it refuses to admit non-compliance or fault.

If you feel your rights have been violated under the FCRA during the employment process contact SmithMarco P.C. for a  free case review.