Labor & Employment E-lert -- Increase of Class Action Lawsuits Regarding Procedure of Background Checks on Prospective Employees

The Fair Credit Reporting Act (“FCRA”) regulates the process by which employers may run certain background checks on current or prospective employees in order to make an employment decision. Before the employer runs the check, the employer must provide the employee with a disclosure and obtain the employee’s written authorization. The FCRA requires that the disclosure must be clear and conspicuous, and appear in a document that consists solely of the disclosure. Recently, we have observed a trend of plaintiff’s attorneys filing class action lawsuits in federal court to enforce a narrow interpretation of this hyper-technical requirement of the FCRA and to challenge employers who conduct multi-state background checks. Due to increasing litigation in this arena, and in an abundance of caution, we advise employers to review their FCRA forms and general background check procedures to make sure they are in compliance with the federal requirements as well as the applicable state law requirements, particularly for those employers with operations or employees outside of Florida.

Susan T. Spradley
GrayRobinson, P.A. 
301 East Pine Street
Suite 1400
Orlando, Florida 32801
Phone: 407-843-8880
Fax: 407-244-5690