Employers failing to strictly comply with FCRA requirements in conducting background checks continue to face expensive consequences.  On November 16, 2018, the United States District Court for the Southern District of California approved a $1.2 million settlement of a class action lawsuit alleging violations of the FCRA filed against the popular pet supplies chain Petco.

Continue Reading Failing to Properly Conduct Background Checks Continues To Be a Million-Dollar Mistake

In a new class action filed recently against a hospital housekeeping company, employees allege their employer’s fingerprint scanning time-tracking system runs afoul of privacy laws.  The Pennsylvania-based company Xanitos Inc. now faces the lawsuit in federal court in Illinois, claiming the company violated the state’s Biometric Information Privacy Act (BIPA).

Continue Reading Press Pause Before Using Biometric Tech in the Workplace

The Consumer Financial Protection Bureau (“CFPB”) issued a new “A Summary of Your Rights Under the Fair Credit Reporting Act” (“FCRA”)  (“Summary of Rights”) form on September 12, 2018.  This form replaces the previous version issued on November 12, 2012, and is expected to be implemented by employers on September 21, 2018.

Continue Reading New Compliance Requirements for FCRA Background Checks

On May 21, 2018, the United States Supreme Court issued its decision in Epic Systems Corp. v. Lewis, holding that the National Labor Relations Act (“NLRA”) does not prohibit the use of arbitration agreements with class/collective action waivers covered by the Federal Arbitration Act (“FAA”).   The Sixth Circuit has now concluded in Gaffers v. Kelly Services, Inc.  that the Fair Labor Standards Act (“FLSA”), like the NLRA, does not bar the use of arbitration agreements with class/collective action waivers.

Continue Reading Supreme Court’s Decision Upholding Arbitration Agreements Extended to the FLSA

Oregon’s Fair Work Week Act (also known as Oregon’s predictive scheduling law) (the “Act”) is proceeding full speed ahead and will add significant challenges and costs for retailers. The majority of the Act goes into effect on July 1, 2018. Following similar ordinances regulating employee hours passed at municipal levels in Emeryville, California; New York City; San Francisco; San Jose; Seattle; and Washington, D.C., Oregon becomes the latest jurisdiction and the first state to enact a predictive scheduling law.

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A magistrate judge in the U.S. District Court for the District of Oregon recently made findings and recommendations to dismiss a purported class action against Kroger subsidiary Fred Meyer.  The suit alleges that the retailer’s background check process for prospective employees violates the Fair Credit Reporting Act by both failing to properly disclose that a report will be run, and failing to comply with the statute’s procedural requirements before taking adverse action against an applicant.

Continue Reading The Spokeo Chronicles: Another Tentative Background Check Win for Kroger Subsidiary

On April 23, 2018, the U.S. District Court for the Northern District of Illinois in Ratliff v. Celadon Trucking Servs., 1:17-cv-07163, dismissed a putative class action lawsuit alleging a violation of the pre-adverse action notice requirements in section 1681b(b)(3) of the Fair Credit Reporting Act (“FCRA”).  Ratliff is significant in the body of background check precedent because it is a part of an emerging trend of § 1681b(b)(3) claims (as opposed to the more commonly challenged § 1681b(b)(2)Disclosure claims) challenged and dismissed for lack of Article III standing.

In the opinion, Judge Manish S. Shah found plaintiff Ratliff could not show that he suffered an injury-in-fact after defendant Celadon allegedly did not properly provide him with an FCRA mandated notice before declining his employment due to the results of his criminal background check.

Continue Reading The Spokeo Chronicles: FCRA Pre-Adverse Action Claim Dismissed for Failure to Plead Injury-in-Fact

On April 3, 2018, San Francisco amended its Fair Chance Ordinance, the city and county’s so-called “ban-the-box” legislation that limits how private employers can use an applicant’s criminal history in employment decisions.  The amendments, which take effect on October 1, 2018, expand the scope and penalties of the San Francisco ordinance and add to the growing framework of ban-the-box legislation across California.  The complete text of the amendment can be found here.

Continue Reading San Francisco Sharpens the Teeth of its “Ban-the-Box” Ordinance and Adds to California’s Growing Ban-the-Box Framework