Increased FCRA Background Check Litigation – How Employers Reduce Risk in 2016
When employers are assessing potential employees or promoting existing ones, frequently they will conduct criminal background and credit checks. Unfortunately employers often overlook the requirements of the federal Fair Credit Reporting Act (FCRA) as well as various state and local laws. Complaints often involve claims such as unclear and inconspicuous written disclosures, an employer's failure to provide a preliminary adverse action notice, and the employer’s impatience in taking final adverse action against an individual.
Over the past year, there has been a substantial increase in Background Check Litigation against employers, claiming violation of consumer reporting laws. Such lawsuits almost always are class actions and, in some cases, involve settlements of $2 million to as much as $7 million ($100 and $1,000 per individual violation) in damages. Although large companies predominantly have been the target of most FCRA class actions, smaller companies soon may face the same fate.
Hence, compliance with the FCRA and related state and local laws is of critical importance to minimize legal risks and concomitant litigation costs and fines. Some of the most important requirements include using simple, separate disclosure forms; ensuring that hiring policies and procedures comply with the FCRA’s regulations, particularly the adverse action notification requirements and any related state and local laws; and seeking the advice of employment counsel to reduce the inherent risks of uncompliant background checking practices.
In this two hour, LIVE Webcast, a panel of distinguished professionals and thought leaders assembled by The Knowledge Group will review and discuss the important aspects of this significant topic. Speakers will provide an in-depth discussion of the Increased FCRA Background Check Litigation, explain How Employers Reduce Risk in 2016, and offer best practices in avoiding lawsuits brought on by failure to comply with FCRA background check requirements. Key issues that will be covered in this course are:
- Fair Credit Reporting Act (FCRA)
- Employee Background Checks
- 'Consumer Report' and 'Adverse Action Notice'
- Pitfalls on FCRA background Checks
- Non-compliance and Potential Liability
- Lee v. The Hertz Corporation, et al.
- State Legislatures & Limited Use of Background Checks
- Best Practices in Mitigating Class Action Risk
- Regulatory Updates
Adam D. Kemper, Attorney
Greenspoon Marder, P.A.
- Introduction of self, firm, practice area and specialty dealing with labor and employment issues, including compliance with FCRA
- Discussion of why employers conduct background checks and the pros and cons of doing so in general
- Discussion of basic framework of FCRA, consent requirements and notice requirements
- Discussion of some recent class action lawsuits and what companies did wrong
- Tips on how to avoid liability when performing background checks utilizing third party service
- Discussion of use of social media to perform background checks
- Some issues to consider when conducting background checks utilizing social media
- Tips on how to avoid liability when using social media to perform background checks
Barry Goheen, Partner
King & Spalding LLP
- Intro of self/firm, litigation experience in screening, etc.
- The rise in lawsuits, particularly class action lawsuits, under the FCRA in the screening area
- The potentially large exposure to companies under the FCRA for not complying with background screening requirements
- The potential impact of Spokeo on background screening cases, esp. class actions
Scott Paler, Partner
DeWitt Ross & Stevens S.C.
- The EEOC and various states have made efforts to ensure that employers do not simply exclude all convicts and felons. Employers are well advised to develop a thoughtful approach for determining when applicants should be rejected based on criminal history.
- In the last five years, approximately 10 states and certain municipalities have enacted laws that restrict employers' use of credit history information. The best approach today is to limit the use of credit history information to certain positions and ensure compliance with a host of new written notice requirements.
Who Should Attend:
- Employment Law Attorneys
- HR Personnel
- In-house Counsel
- Compliance and Risk Officers
- Criminal and Civil Litigators
- Attorneys defending class actions
- Litigation Officers
- Litigation Support Specialists
- Records & Information Directors/Managers
- Top Level Management
- Public and Private Companies
- Other Interested Professionals
Adam D. Kemper practices in the area of labor and employment law at Greenspoon Marder Law. He counsels employers on a variety of workplace issues including, but not limited to, wage and hour, employment agreements, non-competition agreements (and other restrictive covenants), equal employment opportunity, sexual harassment, and any other legal obligations that are required in order to maintain a workplace that is compliant with applicable local, state and federal labor and employment laws. Mr. Kemper has experience handling trials, administrative hearings, department of labor audits and garnishment proceedings.
Mr. Kemper received his B.A. from Florida State University and his J.D. from Florida International University College of Law where he finished in the top 5% of his class. During law school, Mr. Kemper interned at the U.S. Equal Employment Opportunity Commission. .
Adam D. Kemper practices in the area of labor and employment law at Greenspoon Marder Law. He counsels employers on …
Barry Goheen is a partner in King & Spalding’s Litigation Practice Group, and leads the firm’s privacy litigation practice. He focuses on consumer class actions and data breach and privacy litigation. He has been lead or co-counsel in dozens of class actions and individual cases in all aspects of privacy-related litigation, including actions arising from data breaches, employee background screening, and consumer credit/identity theft such as the Telephone Consumer Protection Act, the Fair Credit Reporting Act and its Fair and Accurate Credit Transactions Act amendment, and the Equal Credit Opportunity Act.
Mr. Goheen has served as lead or co-counsel in over 25 privacy-based class actions in state and federal courts, including over 20 class actions against consumer reporting agency alleging violations of Fair Credit Reporting Act, representing such clients as SunTrust Banks, Shell, Countrywide, Equifax, Bank of America, and Capital One.
Barry Goheen is a partner in King & Spalding’s Litigation Practice Group, and leads the firm’s privacy litigation practice. He …
Scott Paler is a Partner at one of the largest law firms in Wisconsin: DeWitt Ross & Stevens S.C. He currently serves as Chair of the Labor and Employment Practice Group. In that role, he advises companies on a wide range of employment issues, including discrimination and harassment claims, wage and hour classifications, and termination decisions. Mr. Paler maintains a unique expertise in background screening issues. Over the last ten years, he has counseled employers across the country, ranging from Fortune 500 companies to small businesses, on developing and implementing sound background screening policies. He has also helped defend employers’ background screening practices in lawsuits and administrative actions. In addition to working with employers on background screening issues, Mr. Paler has served as outside counsel for numerous background screening providers. He presently serves as Co-Chair of the Litigation Avoidance Sub-Committee for the National Association of Professional Background Screeners (NAPBS).
Scott Paler is a Partner at one of the largest law firms in Wisconsin: DeWitt Ross & Stevens S.C. He …
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About Greenspoon Marder, P.A.
Greenspoon Marder was founded in 1981 with a goal to become big enough to handle large and complex cases while remaining small enough to offer each client focused, personal attention. By carefully selecting attorneys with exceptional knowledge, talent and integrity, we accomplished that goal and, as a team, we deliver comprehensive legal services that meet the highest standards of the legal profession every day.
Over the years, we have earned a reputation as a valued legal and business advisor to businesses and individuals who want effective representation delivered with a personal touch. Today, we are a full-service law firm with resources and capabilities that rival those of the largest firms.
About King & Spalding LLP
King & Spalding’s Data, Privacy & Security Practice regularly advises clients regarding the myriad statutory and regulatory requirements businesses face when handling—either in gathering, managing, securing, transferring, sharing, selling or disposing of—personal and other sensitive information concerning individuals such as employees, consumers, customers, or patients, in the U.S. and globally. This often entails assisting clients in responding to data security breaches, complying with security breach notice laws, avoiding potential litigation arising out of internal and external data security breaches, and, as necessary, defending litigation.
With more than 50 Data, Privacy & Security Practice lawyers in offices across the United States, Europe and the Middle East, our team applies a multidisciplinary approach to such issues, we bring together attorneys with backgrounds in corporate governance and transactions, healthcare, intellectual property rights, complex civil litigation, e-discovery, government investigations, government advocacy, and public policy.
About DeWitt Ross & Stevens S.C.
DeWitt Ross & Stevens S.C., including its affiliate DeWitt Mackall Crounse & Moore S.C., is one of the ten largest law firms based in Wisconsin, with an additional presence in Minnesota. It has more than 100 attorneys practicing in Madison and Metropolitan Milwaukee, Wisconsin, and Minneapolis, Minnesota, in a variety of legal areas and has the experience to service clients of all scopes and sizes. The firm is known for its work in several areas, including corporate law, construction, employment, environmental, employee benefits, government relations, health care, litigation, real estate, tax, estate planning, family law, immigration, international, intellectual property, personal injury, patents, trademarks, and copyright law.
More information is available at www.dewittross.com.