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Another Lawsuit Reminder: Are Your Company’s Adverse Action Procedures FCRA Compliant?

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FCRA compliance continues to be an important theme in 2015. This time, McKnight’s.com reports that a federal lawsuit claims Genesis Healthcare, which runs more than 500 long-term care facilities and is one of the largest nursing home chains in the U.S., did not follow proper adverse action procedures. In addition, the suit claims that the consumer reporting agency that Genesis used, General Information Services (GIS), did not “take reasonable steps to ensure accuracy” of the information it reported.

 

The plaintiff claims that Genesis Healthcare rescinded the job after hiring her, and she was not provided with a copy of her background check and “a statement of her rights, as called for by the FCRA.” The plaintiff is also seeking class action status against Genesis.

 

The beginning of the year is a good time to review your adverse action procedures. Check your letters and supporting documents, and review your processes to make sure that they comply with FCRA guidelines.

 

Corporate Screening would also like to remind you that our Adverse Action Workflow Tool can help. Generate on-demand pre-adverse action and adverse action letters, automated messages that tell you when to proceed with the next step, and with an electronic log that keeps track of your actions, the Adverse Action Workflow was designed to simplify and streamline this process!

 

For more information about the Adverse Action Workflow Tool, visit our website at http://www.corporatescreening.com/services/compliance-services/fcra-adverse-action/. You can also sign up for a free webinar to learn more about the tool. Dates, times and registration links are listed below.

 

Adverse Action Workflow Tool Webinars

Please note that all webinars are on Eastern Standard Time.

 

Wed, Jan 28, 2015 3:00 PM – 4:00 PM EST https://attendee.gotowebinar.com/register/1307874942642697473

 

Fri, Jan 30, 2015 11:00 AM – 12:00 PM EST https://attendee.gotowebinar.com/register/3946745730258683393

 

Tue, Feb 3, 2015 1:00 PM – 2:00 PM EST https://attendee.gotowebinar.com/register/8775826088218285569

 

Thu, Feb 5, 2015 11:00 AM – 12:00 PM EST https://attendee.gotowebinar.com/register/5289282413122053889

New Year, New FCRA Class Action

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Welcome to a new year. It didn’t take long before an FCRA class action lawsuit was filed. Deadline.com reports that Paramount Pictures is the latest to be slapped with a lawsuit that alleges the company violated the Fair Credit Reporting Act (FCRA). The plaintiffs allege that the company’s disclosure document violated the FCRA because it was not a stand-alone document.

 

According to the article, the estimated class membership is more than 500, and statutory damage requests range from $100 to $1000 for each FCRA violation. Add in the legal fees involved and this could be an expensive case for Paramount.

 

Employers, please take the time now to review your background screening policies and forms. It’s a new year and a good time to ensure they comply with FCRA guidelines, as well as all state and local regulations. As this case illustrates, it is doubtful these expensive lawsuits will end any time soon. Rather, it is far more likely that there will be an increase in these types of cases this year and in the coming years.

Uber Under Fire on a Number of Fronts

Uber’s been making worldwide news a lot lately for its policies. And not in a good way. Its company standards have been questioned – from its background checks to its insurance policies. This has resulted in lawmakers to express concerns about the company. And the results have included lawsuits, as well as suspension of company operations in certain states and municipalities. And the bad news extends worldwide.

In the US, there appears to be a battle between Uber and some of the states out west. On Monday, December 8, 2014 the city of Portland, Oregon sued the company, claiming it is an “illegal, unregulated transportation service” according to Business Insider. The following day, Uber was sued by District Attorneys in Los Angeles and San Francisco, who claimed that the company “falsely assured customers it used “industry-leading standards” to vet its drivers while failing to use fingerprints to check criminal histories,” according to Businessweek.

 

Additional municipalities and states are also enacting or considering legislation. WDRB.com reports that on December 5, 2014, the state of Kentucky enacted “emergency rules” for ride share companies that require them to apply to operate in the state, with specific insurance requirements and background checks. And as we shared in an earlier blog, North Carolina’s General Assembly is studying whether to create a state standard for all vehicles for hire.

Worldwide, things aren’t looking much better. Earlier this week, Uber was banned in New Delhi, India, after a female passenger accused an Uber driver of raping her. The company responded by saying it would review its operations in the country and will assess how it screens its employees, according to the New York Times and other sources. And the company has been banned in the Netherlands as well as Thailand.

The Times reports that Uber’s background checks include drug and alcohol testing, but the company does not do fingerprint screening. It also relates that some lawmakers claim their state requirements for background checks are generally “more rigorous” than Uber’s.

Uber has experienced rapid growth, and in doing so, has upset the applecart for traditional transportation services, such as livery vehicles and taxis. These companies are understandably concerned about Uber’s ability to undercut their services, and in some cases have lobbied to keep ride sharing from their locales. But given the rapid expansion, it looks like ride sharing is not going away any time soon.

 

Concern for passengers and drivers alike needs to be at the forefront for Uber, as well as lawmakers and policymakers. Uber and other ride-sharing operations should ensure that their drivers undergo strict background checks. It’s just good business to protect one’s customers.

CS Adverse Action Workflow Tool: Staying in Compliance

 

Employers, is your adverse action process in compliance with the Fair Credit Reporting Act (FCRA)? Recently, there have been a number of class action lawsuits filed against companies in a variety of industries, alleging that employers are not following adverse action procedures.

Class action lawsuits are expensive for employers, and settlements alone can be in the millions of dollars. In October, 2014, Dollar General settled a class action lawsuit for the sum of $4 million, in a case that alleged that the retailer did not comply with FCRA adverse action requirements.

So we ask you again, are you in compliance? To address this issue, Corporate Screening is pleased to announce the availability of our Adverse Action Workflow Tool.  Designed to assist employers with their compliance efforts, the tool streamlines the process for busy professionals. It features customizable options, and includes all required documents and state-specific forms, as well as a date and time stamped audit record of the process.

We invite you to learn more about the Adverse Action Workflow Tool and how it can help you stay compliant. Click here to visit our webpage and watch a short video. You can also get more information by registering for one of our free webinars, dates and times are listed below.

 

Adverse Action Webinar Registration Information

Select the webinar time and date below that works best for you and click on the link to register. Please note that all webinar times are listed in Eastern Standard Time. We look forward to seeing you on a webinar soon!

Thursday, December 04, 2014 at 3:00 PM EST, https://attendee.gotowebinar.com/register/5562384607654633218

Wednesday, December 10, 2014 at 1:00 PM EST, https://attendee.gotowebinar.com/register/2175063060872146690

Friday, December 12, 2014 at 11:00 AM EST, https://attendee.gotowebinar.com/register/7319122713864053506

Allegheny County “Bans the Box”

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Beginning January 1, 2015, Allegheny County, Pennsylvania will join the “ban the box” movement and stop asking if an applicant has a criminal record on the initial job application. The county joins the cities of Pittsburgh, which took the question off its job applications in 2012, and Philadelphia, which stopped asking in 2011.

 

According to TribLive.com, if a position requires a criminal history or background check, the county will note this information and will conduct a background check when the candidate accepts the job offer. Certain positions, such as those in law enforcement, county- run nursing home, or with departments of Human Services and Emergency Services will still be required to undergo background checks due to state and federal requirements.

 

According to the article, the county Executive, Rich Fitzgerald, remarked that “he hoped the county’s ban sparks discussion among private companies, but he does not intend to mandate that businesses strike the question.”

Background Check Forms: Ensure Yours Are Compliant

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Class action lawsuits can cost employers a pretty penny. An example of this is a recent settlement by Publix supermarket for $6.8 million because release language was included in the company’s background check disclosure form, which violates the Fair Credit Reporting Act (FCRA).

A recent piece in the Employment Class Action Blog by Todd Lebowtiz of Baker & Hostetler, LLP, begins simply with, “If your company’s background check disclosure form includes a release of liability, take it out.”

The blog goes on to share the following information:

“The Federal Trade Commission (which enforced the FCRA until recently) had previously opined that it is permissible to include, on the disclosure form, “minor additional items” that do not distract from the nature of the form.  Examples of additional items that can be added to the form include a place for the applicant to write identifying information or the inclusion of a notice that the background check may include information obtained through interviews with individuals (i.e., an investigative consumer report).  The FTC’s primary concerns were that the disclosure not be diminished in importance by the inclusion of unrelated information and that the disclosure not be buried in small text at the end of an employment application, where it could be missed by an applicant. 

“At least two district courts have recently ruled that release language is not the kind of “minor additional item” that an employer is permitted to include on the disclosure form.  Although the Publix case settled before the court entered a ruling on the merits, employers should heed the warning sounded by this settlement and take steps to ensure that their disclosure forms do not include release language.”

Corporate Screening has been reporting about the increase in FCRA class action lawsuits in our newsletter, on webinars and in blogs. These cases are expensive to fight, and expensive to settle. Employers, make sure all of your forms and procedures are current and meet FCRA guidelines. And if you have questions, we can help.

2014 HR Awards: Congratulations to Winners and Finalists

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Corporate Screening is pleased to congratulate all winners and finalists of the 2014 HR Awards, co-hosted by ERC and CSHRM. Winners will be recognized at a luncheon taking place on November 6, 2014, at Executive Caterers at Landerhaven.

The HR Awards recognize top Human Resources professionals in Northeast Ohio who demonstrate excellence in the field of human resource management. Award categories include Business Leadership, Emerging Leader, Compensation & Benefits, Employee Relations, Organizational & Employee Development, HR Partner, Diversity, Talent Management, HR Student (Graduate and Undergraduate) and HR Intern.

As a proud sponsor of this event, Corporate Screening invites you to visit www.theHRawards.com for a complete list of winners and finalists, as well as to register for the luncheon on November 6. The program will celebrate and honor the winners by sharing some of their inspiring success stories and their accomplishments.

Once again, congratulations to all of the winners and finalists.

LinkedIn Class Action Lawsuit: Risks of Using Social Media when Hiring

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Earlier this month, a group of plaintiffs in California filed a class action lawsuit against LinkedIn (Sweet, et. al. v. LinkedIn Corporation). They alleged the company “is acting as a credit reporting agency, and failing to follow the requirements of the Fair Credit Reporting Act” (FCRA), according to the article Lawsuit accuses LinkedIn of Illegally Costing People Jobs.

At the heart of the lawsuit is LinkedIn’s “Trusted Reference” report. The report is available to premium users (who pay a fee) and it encourages employers to contact a job applicant’s connections using LinkedIn’s mail service, without the knowledge of the job applicant. The lawsuit alleges that “without getting consent from consumers, and without providing a means for consumers to dispute inaccuracies” LinkedIn violates the FCRA. In addition, it violates the FCRA because it “provides the reports to “premium” members without determining their intent on using the information.”

Whether or not the report qualifies as a credit report remains to be seen, but an FCRA expert from the Public Interest Research Group cited in the article believed it possibly could. And if it is considered a credit report, consumers need to receive proper notice.

Employers using social media when making hiring decisions should be aware of this lawsuit. It should be noted that there are still many gray areas in using social media in hiring, and this class action lawsuit against LinkedIn illustrates that fact.