EEOC and FCRA Lawsuits Can Be Costly & Might Be Avoidable
Background screening is a critical tool utilized by hiring managers to make a well-informed decision. The information and data drawn from a typical pre-employment background check can verify and confirm information provided by an applicant. From credit worthiness to criminal history data, a background check can be extremely valuable to an employer.
Further, employment screening is regulated by a number of agencies and laws governing the use of public records and can vary between jurisdictions. Well-qualified background screening agencies understand that the actual screening process can be very complicated and requires a number of steps that are regulated by law.
Every year lawsuits involving action by the Equal Employment Opportunity Commission (EEOC) and based upon the Fair Credit Reporting Act (FCRA) come to trial. Regardless of the result of a court trial, litigation is a costly expenditure for a company.
Adam Almeida, President and CEO of CriminalBackgroundRecords.com states: “The cost of litigation is expensive and, in some cases, may be avoidable. A best practice remains for an employer to work with a well-qualified third-party background screening agency to remain fully compliant with existing laws governing employment screening.”
In 2012 the EEOC released guidance to employers regarding how to lawfully manage the use of criminal background records as part of pre-employment background screening. This action created some concern for hiring managers.
A Texas court took up the matter and pushed back against the EEOC in a lawsuit, State of Texas v. EEOC, No. 5:13–CV-255, 2017 U.S. Dist. LEXIS 30558 (N.D. Tex. Feb. 1, 2018).
From Lexology.com (Feb 28, 18):
The Court granted the EEOC’s motion for summary judgment, and denied Texas’s motion for summary judgment and request for declaratory relief. First, the Court opined that Texas did not have a right to maintain and enforce its laws and policies that absolutely bar convicted felons (or certain categories of convicted felons) from serving in any job that the State and its Legislature deemed appropriate. (1)
In three recent cases brought under the guise of FCRA enforcement employers prevailed. In Lewis v Southwest Airlines; Branch v Geico; and, Culberson v Walt Disney results varied but the ultimate outcome shows the employer victorious. (2)
But at what financial cost?
Almeida states: “Larger companies with legal departments can bear the brunt of a court case brought forth due to background screening concerns. But this prospect for small to mid-size companies could be financially devastating. Maintaining compliance with laws governing the use of employment background checks is a prudent best practice.”
From JDSupra.com discussing conclusions from recent FCRA related lawsuits (as cited above) (Mar 1, 18):
The law in this area is dynamic, and employers should continue to monitor case law and regulatory developments. To mitigate risk, employers should also arrange for a privileged review of their disclosure documents and pre-adverse action notices and procedure. In addition, employers should continue to be mindful of their obligations under expanding state and local ban-the-box laws, which intersect with the FCRA’s required processes. (3)
Almeida concludes: “Ultimately a best practice remains for companies large and small to work with a well-qualified third-party background screening agency in order to remain fully compliant with all laws governing the use of reports related to background screening and the practice of background screening itself.”
CriminalBackgroundRecords.com is a third-party background screening company that can provide compliant solutions for all screening requirements. From pre-employment to post-hire screening CriminalBackgroundRecords.com provides background screening services across a broad array of industries. From the smallest organization to the largest corporation, CriminalBackgroundRecords.com can fulfill every background screening requirement.
Notes
(1) lexology.com/library/detail.aspx?g=24076a67-0f45-44e8-ade3-976815d65eba
(2) jdsupra.com/legalnews/employers-prevail-in-fcra-class-actions-49345/
(3) jdsupra.com/legalnews/employers-prevail-in-fcra-class-actions-49345/
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