HR - Background Checks

Employers should continue to exercise caution and care in drafting their criminal record screening policies. A recent settlement by Dollar General underscores this point, even though it comes on the heels of the Fifth Circuit’s opinion holding that the EEOC violated the federal Administrative Proced

Executive Summary: On Tuesday, August 6, 2019, the United States Court of Appeals for the 5th Circuit held that the Equal Employment Opportunity Commission’s (“EEOC”) Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII (“the Guidance”) i

Almost two years ago to the day, the U.S. Court of Appeals for the Ninth Circuit became the first appellate court to rule on the lawfulness of a liability waiver in a Fair Credit Reporting Act (FCRA) disclosure. In Syed v. M-I, the Ninth Circuit ruled that an employer acted “willfully” in violation

Employers that use criminal record-screening policies must continue to be vigilant about compliance with all applicable laws and should know that the EEOC’s scrutiny of such policies, while perhaps scaled back, has not ended.1 To the contrary, the EEOC has demonstrated a continued interest in discou

On September 12, 2018, the Consumer Financial Protection Bureau (CFPB), the federal agency which oversees the federal Fair Credit Reporting Act (FCRA) issued an interim final rule updating the agency’s model FCRA notice. The new form replaces the old form effective September 21, 2018.

A new model “A Summary of Your Rights Under the Fair Credit Reporting Act” disclosure form document was released on September 12, 2018, by the Consumer Financial Protection Bureau (CFPB). Employers and background check companies may begin using the new form on September 21, 2018.

On September 10, 2018, in Long v. Southeastern Pennsylvania Transportation Authority (SEPTA), the U.S. Court of Appeals for the Third Circuit joined the chorus of recent circuit court opinions tackling the question of constitutional standing to sue in federal court under the Fair Credit Reporting Ac

On September 6, 2018, in Auer v. Trans Union, LLC, the U.S. Court of Appeals for the Eighth Circuit joined the Seventh Circuit in holding that an individual plaintiff did not have constitutional standing to sue in federal court under the Fair Credit Reporting Act (FCRA) for an alleged violation of t

On August 29, 2018, the U.S. Court of Appeals for the Seventh Circuit issued its opinion in Robertson v. Allied Solutions, LLC, holding the plaintiff had standing to sue in federal court under the Fair Credit Reporting Act (FCRA). Standing is a constitutional requirement to bring a lawsuit in federa

Fair Credit Reporting Act (FCRA) class action lawsuits against employers are reaching epidemic proportions as class-wide settlements encourage more lawyers to move into this niche practice area.1 Because most of the opinions tend to come from trial courts, definitive guidance for employers is lackin

The Ninth Circuit’s recent ruling in Dutta v. State Farm Mutual Automobile Insurance Company highlights the importance of evaluating and potentially challenging a plaintiff’s standing in a Fair Credit Reporting Act (“FCRA”) action.

Employers that use criminal record screening policies must continue to be vigilant about compliance with all applicable laws. A recent settlement by one of the nation’s leading retailers, Target, reinforces this point. The company has settled a threatened nationwide class action lawsuit arising unde

The FCRA is not a classic employment law, but regulates the procurement and use of background checks by employers. Before procuring a background check from a consumer reporting agency (CRA), the employer must disclose its intention to do so and obtain the individual’s authorization (known as the “st

On February 1, 2018, a federal judge enjoined the EEOC and U.S. Attorney General from enforcing against the State of Texas the EEOC’s 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (the “Guidance

Over the past few years, employers have come to expect new ban-the-box laws, and 2018 is no exception: one state law was amended and one new local law was enacted. In late December 2017, New Jersey expanded its previously-enacted ban-the-box law, and the City of Spokane, Washington enacted a new ban

In April 2012, the Equal Employment Opportunity Commission (“EEOC”) issued updated “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.”1 The guidance concerns how, in the EEOC’s view, Title VII restricts

On November 13, 2017, the U.S. Supreme Court declined to hear the appeal of one of 2017’s more significant Fair Credit Reporting Act (FCRA) opinions, Syed v. M-I, LLC. (9th Cir. Jan. 20, 2017). In Syed, the Ninth Circuit Court of Appeals held that a background check disclosure which included a liabi

On August 15, 2017, the U.S. Court of Appeals for the Ninth Circuit issued another opinion in the saga of Robins v. Spokeo, Inc.—a case dealing with the question of what violations of a federal statute are sufficient to confer Article III standing. The plaintiff alleges Spokeo violated the federal F

A job applicant alleging a violation of one of the procedural requirements of the Fair Credit Reporting Act (FCRA) lacked standing to sue under Article III of the United States Constitution because he failed to allege facts showing he suffered a concrete injury in fact, apart from the alleged statut

The filing of a new discrimination lawsuit by the Equal Employment Opportunity Commission (EEOC) answers the question whether, after five years of intensive scrutiny, employers can breathe a sigh of relief in terms of screening job applicants based on criminal records.1 The new filing reveals that t