The Consumer Financial Protection Bureau (CFPB) recently issued a legal Advisory in early July 2022, intending to protect the privacy rights of individuals subject to background checks by third-party consumer reporting agencies (CRAs) under the federal Fair Credit Reporting Act (FCRA). The Advisory also seeks to remind users (e.g., employers)
Background Checks
The Latest in Multi-Jurisdictional Background Check Compliance
Conducting criminal background checks on job candidates is a common practice for employers but one that raises a host of compliance concerns amid a series of federal, state, and local laws and regulations governing how and when background checks may be conducted.
Sands Shift for Background Screening for Manufacturers
Manufacturing employees have a hand in everything that our country produces. Naturally, manufacturers want to know their employees are reliable and trustworthy. Manufacturers are taking steps, including background checks, to ensure a single hire does not inadvertently cause liability.
Eighth Circuit Holds Article III Standing Was Lacking for an Alleged Violation of the FCRA’s “Pre-Adverse Action” Notice Provision
On April 4, 2022, the U.S. Court of Appeals for the Eighth Circuit joined the Ninth Circuit in holding that a plaintiff lacked Article III standing to prosecute her statutory claims under the Fair Credit Reporting Act (FCRA) in federal court. The Eighth Circuit’s opinion in Schumacher v. SC
The Rest of the Story (for Now): Employer Prevails in FCRA Class Action Alleging “Stand-Alone” Disclosure Violation
As we predicted four years ago, class action lawsuits against employers under the Fair Credit Reporting Act (FCRA) continue to spike, including class actions targeting background check disclosures.1 Before procuring a background check from a consumer reporting agency, the employer must disclose its intention to do so and obtain
CPRA: Background, Notice at Collection, and Website Privacy Policy
As the pandemic ebbs in late 2021, employers need to confront new data protection challenges. In the first podcast in the Littler California Privacy Rights Act (CPRA) Podcast Series, Co-Chair of Littler’s Privacy Practice, Philip Gordon, along with core privacy team members, shareholders Kwabena Appenteng and Zoe Argento, discuss
For Manufacturers Struggling With Labor Shortage, Time to Review Background Check Processes
As COVID-19 restrictions continue to relax, manufacturers are facing an ever-tightening labor market. Amidst supply-chain disruptions and computer chip shortages, human capital is proving to be increasingly scarce. Many manufacturers are struggling to fill open positions.
Supreme Court Provides Additional Guidance on FCRA Standing
On June 25, 2021, the Supreme Court of the United States issued a ruling that provides additional guidance related to the Fair Credit Reporting Act (FCRA), a federal law that regulates the collection of consumers’ credit information and access to their credit reports. In the employment context, the FCRA most
The Dust Hasn’t Settled Yet: Employers Must Continue to Be Thoughtful About Criminal Record Screening Policies
Last month, the new chair of the EEOC, Charlotte A. Burrows, was the keynote speaker at a conference regarding new research on criminal recidivism.1 The EEOC has been mostly quiet on the topic of criminal background checks and Title VII since the U.S.
‘No Concrete Harm, No Standing,’ Divided Supreme Court Reaffirms in Fair Credit Reporting Act Case
The right of plaintiffs to sue for technical violations of the Fair Credit Reporting Act (FCRA) and other federal privacy laws has been the subject of much class litigation in recent years.
The FDIC Again Loosens Restrictions on Hiring Bank Personnel with Criminal Histories
On July 24, 2020, the Federal Deposit Insurance Corporation (FDIC) published a Final Rule regarding Section 19 of the Federal Deposit Insurance Act, 12 U.S.C. § 1829 (“Section 19”), which restricts hiring at FDIC-insured depository institutions, such as FDIC member banks. The Final Rule codifies the FDIC’s prior guidance
Ninth Circuit Issues Two (Mostly) Pro-Employer Background Check Decisions
The Ninth Circuit recently issued two mostly pro-employer federal Fair Credit Reporting Act (FCRA) background check decisions.
New Year, New Local Ban-the-Box Restrictions on Background Checks
With the start of a new year—and a new decade—employers in San Francisco, California, Waterloo, Iowa, and Grand Rapids, Michigan, must follow new “ban-the-box” laws restricting their use of criminal records in hiring and personnel decisions. In addition, Maryland’s statewide ban-the-box law becomes operative on February 29, 2020.1 Looking ahead, St. Louis, Missouri enacted new restrictions that will take effect on January 1, 2021. Federal contractors also will be subject to new restrictions as of December 20, 2021. The following summarizes the three new city-wide laws that are now, or will soon be, in place.
Ban-the-Box Law Limits Criminal Background Inquiries by Federal Contractors Beginning in December 2021
The Fair Chance Act prohibits federal contractors from inquiring about a job applicant’s criminal background in certain cases in the initial stages of the application process. The Act will go into effect on December 20, 2021.
Dollar General Reaches Settlement with the EEOC in Years-Long Background Check Bias Suit
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 Procedure Act (APA) in issuing its 2012 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 EEOC and Dollar General recently resolved the EEOC’s six-year lawsuit against the retailer arising under Title VII of the Civil Rights Act of 1964 (Title VII) for $6 million dollars and other programmatic relief.
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