Background Checks

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

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

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.

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

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.

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.

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

The Ninth Circuit recently issued two mostly pro-employer federal Fair Credit Reporting Act (FCRA) background check decisions.

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.

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.

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.

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”) is unlawful in the state of Texas. (See State of Texas v. Equal Employment Opportunity Commission, et al., August 6, 2019). The court agreed with the State of Texas that the EEOC and the Attorney General cannot treat the EEOC’s Guidance as binding in any way. The court concluded that the Guidance is a final agency action because it determines rights and obligations and legal consequences can flow from it. Thus, the EEOC went outside of its statutory authority when it issued the Guidance.

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 of the FCRA when it included a liability waiver in its FCRA disclosure.1 On January 29, 2019, the Ninth Circuit doubled-down on its ruling, holding in Gilberg v. Cal. Check Cashing Stores, 9th Cir., No. 17-16263, that the statute’s prohibition on including so-called “extraneous” information with the requisite disclosure extends even to information about the legal rights that job applicants have under state fair credit reporting laws.

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 discouraging employers from directly or indirectly screening out job applicants who belong to protected classes under Title VII and tend to be arrested and convicted at disproportionately higher rates.

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.