So goes the headline of this recent story detailing a settlement between supermarket chain Publix and a class of employees/applicants for employment at the grocery store. The class brought suit under the Fair Credit Reporting Act (FCRA), which requires employers to “provide prior written notice before they can procure a consumer report about any employee or applicant for employment. The FCRA requires that this notice be ‘in a document that consists solely of the disclosure.’” According to the suit of more than 90,000 potential class members, Publix violated this requirement by including the following sentence in its disclosure: “I release Publix Super Markets, Inc., its employees, its authorized agents and representatives from any liability in connection with any decisions made concerning my employment based on information reported.” The article goes on to explain just how this could be construed to violate the FCRA and provides a few helpful pointers for other employers looking to avoid the same fate as Publix:
In December 2013, a Pennsylvania federal district court held that an employer violated the FCRA by including a waiver of rights in a combined FCRA disclosure/authorization form. It is common practice for employers to include waiver and release language in FCRA authorization forms, however these cases underscore the importance of maintaining the required FCRA disclosure as a stand-alone document when including release language. While the statute says a FCRA disclosure may also include an authorization, it does not allow for the disclosure to include any other content. Therefore, employers should provide the disclosure in a stand-alone document and include any desired release language in a separate authorization form.
Violations of the FCRA are subject to statutory damages between $100 and $1,000 for each willful violation of the Act. In light of these lawsuits, employers who procure consumer reports as part of their background check procedures for employees and applicants should carefully review their FCRA disclosures to ensure compliance with the Act.
