Delta Airlines has become the latest notable employer to settle a class-action lawsuit over their disclosure and authorization forms in relation to background screening. Over the last few years the plaintiffs’ bar has targeted specific language within the FCRA to use as ammunition against employers.
The Fair Credit Reporting Act (FCRA) imposes specific obligations on employers, including the obligation to obtain informed authorization from job applicants for background checks. To obtain authorization, the FCRA directs employers to make a “clear and conspicuous” written disclosure to the applicant about the background check in a document that consists “solely” of the disclosure. This has spurred disputes and numerous lawsuits over what format would satisfy that language.
One common theme that has consistently been the source of litigation surrounding this wording is the use of forms that include “extraneous” information other than language that is specific to the request, namely the disclosure and authorization. It should be a stand-alone form. Examples of information that employers have included on these forms that have made them a target for litigation include:
- Language that claims to release the employer from liability for conducting, obtaining, or using the background screening report
- A certification by the prospective employee that all information in application is accurate
- Overly broad authorizations that permit release of information that the FCRA doesn’t allow to be included in the report
- Wording that purports to require the prospective employee to acknowledge that your hiring decisions are based on legitimate non-discriminatory reasons
Delta Airlines became a target for litigation by including information about state laws in their disclosure and authorization forms. The class-action lawsuit contended by including that information was extraneous and misleading to the applicants and violated the FCRA.
Delta Airlines agreed to settle the lawsuit. In the settlement, they agreed to pay $2.3 million over the allegation they failed to provide approximately 44,000 applicants a stand-alone background check disclosure. That’s approximately $52.15 per class member.
Delta Airlines joins other notable companies that have made similar errors with their disclosure and authorization forms. Those other companies would include Avis, Whole Foods, and Home Depot. It is advisable for every organization who utilizes background screening to periodically review every form they use to ensure it is compliant with all relevant laws.
As a consumer reporting agency under the FCRA, IntelliCorp has a strong focus on legal compliance within the background screening industry. Our 20+ years of industry expertise has taught us that remaining on the vanguard of legal compliance in the industry will not only protect ourselves from violating the FCRA, but our clients as well.
IntelliCorp has constructed specific product packages that are meant to address the specific needs of our clients, with additional customization available.
IntelliCorp is committed to providing the support and resources to assist our clients maximize the value they receive from their background screening program. These resources include:
- Whitepaper library
- Video library
- Legislative guides
- Blog center
- Forms repository
- Training & education webinars and more
IntelliCorp has continually invested in smart and innovative technologies with the goal of providing our clients effective ways to maintain and run their screening programs. From self-service batching, integrations with various applicant tracking systems (ATS), and our Candidate Direct and Volunteer Portals, we are always trying to provide the technical solutions our clients need.
Just recently we launched a mobile version of Candidate Direct and Volunteer Portal. This is a real differentiator between IntelliCorp and others in the background screening industry. Check it out.