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Compliance Corder covers articles related to employment decisions due diligence.

U.S. Supreme Court case offers window into CFPB’s position on the FCRA

The U.S. Supreme Court has agreed to hear a closely followed case involving the Fair Credit Reporting Act (the “FCRA”) that will have great significance on privacy law. In connection with this case, the Consumer Financial Protection Bureau (CFPB) offered a glimpse of its stance on the FCRA in an amicus brief recently filed with the U.S. Supreme Court.

In 2012, the Bureau took over the enforcement reins of the FCRA from the Federal Trade Commission (FTC). Since then, the industry has watched for signs on how the Bureau would tackle its new job, with few clues. But in an amicus brief filed jointly with the Solicitor General in Spokeo v. Robins, the CFPB weighed in, taking a consumer-friendly position on the statute.

The dispute began when Robins claimed that Spokeo ran afoul of the FCRA. The spokeo.com site allows users to obtain information about other individuals like address, phone number, employment information, and economic data such as mortgage value and investments. Robins sued after finding incorrect information about himself on the site, alleging that Spokeo was a consumer reporting agency (CRA) under the FCRA and sold “consumer reports” but failed to comply with the various statutory requirements by neglecting to assure the maximum possible accuracy of the information reported on its site and failing to provide notice of statutory responsibilities to purchasers of its reports.

Relying on Section 1681n of the FCRA, which grants consumers a cause of action against an entity that negligently or willfully violates “any requirement imposed

[under the FCRA] with respect to [that] consumer,” Robins filed a putative class action. A federal district court dismissed the suit for a lack of standing but the Ninth Circuit Court of Appeals reversed. The federal appellate panel held that Robins sufficiently alleged an injury in fact because Congress created a right of action to enforce a statutory provision, demonstrating intent to create a statutory right.

Spokeo petitioned the U.S. Supreme Court to take the case. The CFPB filed the amicus brief, siding with the plaintiff and arguing that the justices should deny the writ of certiorari. The Bureau argued to the Court that the statutorily created cause of action found in the FCRA satisfied the injury required for Article III standing. While recognizing that Congress does not have unlimited power to define the class of plaintiffs who may sue in federal court, the CFPB said the legislature “may grant individuals statutory rights that, when violated, confer standing, and the clear language of the FCRA did just that.”

“FCRA thus grants an individual consumer a statutory entitlement to be free from a CRA’s actual dissemination of inaccurate information about him when the CRA fails to employ ‘reasonable procedures’ to assure the information’s accuracy,” according to the CFPB’s brief. A CRA’s willful failure to follow reasonable procedures to ensure that an accurate report about a consumer is disseminated violates a ‘requirement imposed under [FCRA] with respect to [that] consumer.’ It is also a concrete and particularized injury to the consumer because it involves the actual, specific, and non-abstract act of disseminating information about the particular consumer.” This reading – recognizing a legally protected interest in consumer privacy – “is particularly salient in modern-day society given the proliferation of large databases and the ease and rapidity with which information about individuals can be transmitted and retransmitted across the Internet,” the CFPB added, as “public dissemination of inaccurate personal information about the plaintiff is a form of ‘concrete harm’ that courts have traditionally acted to redress, whether or not the plaintiff can prove some further consequential injury.”

Read the CFPB’s amicus brief in Spokeo v. Robins here.

Read the opinion of the U.S. Court of Appeals for the Ninth Circuit here.

 

June 12th, 2015|Categories: Compliance Corner for Employment Decisions|Tags: , |

New law limits credit checks for New York City employers

New York City has joined the growing list of employers placing limits on credit checks. On April 16, the City Council overwhelmingly voted in favor of a bill prohibiting the use of credit checks in most employment situations. Mayor Bill De Blasio signed the legislation on May 6, amending the city’s Human Rights Law to make the use of credit history for hiring and other employment purposes, with certain exceptions, an unlawful discriminatory practice. Set to take effect on September 3, 2015, the law will have a sizable impact on employers in New York City. A review of current policies and procedures to determine if any exceptions apply is key, while employers with a statewide presence should consider whether to continue credit checks in other locations where they remain legal.

As defined by the law, “consumer credit history” means an individual’s credit worthiness, credit standing, credit capacity, or payment history, as indicated by: (a) a consumer credit report; (b) credit score; or (c) information an employer obtains directly from the individual regarding (1) details about credit accounts, including the individual’s number of credit accounts, late or missed payments, charged-off debts, items in collections, credit limit, prior credit report inquiries, or (2) bankruptcies, judgments or liens. The law further provides that “a consumer credit report shall include any written or other communication of any information by a consumer reporting agency that bears on a consumer’s creditworthiness, credit standing, credit capacity or credit history.”

Importantly, employers are prohibited not just from the request or use of credit history for applicants, but also from using credit history as a factor in employment decisions for current employees in “compensation, or the terms, conditions or privileges of employment.”

When initially introduced, the proposal featured no exceptions to the ban on credit checks. But over the course of the past year, limited exceptions were added to the bill. As enacted, the legislation permits the use of credit checks for prospective employees of broker-dealers who must register with the Financial Industry Regulatory Authority (FINRA) as well as for police officers and other public officials in a position involving a “high degree of public trust.” Additional exceptions allow a review of credit history when required by state or federal law or regulations; for positions when an employee must possess a security clearance or has “regular access” to intelligence or national security information; for non-clerical positions with access to “trade secrets;” for computer security positions when the employee’s duties include the ability to modify digital security systems; and for employees with signing authority over third-party funds or assets greater than $10,000 or fiduciary responsibility to an employer with the authority to enter into financial agreements of $10,000 or more.

The law permits individuals to file a complaint of discrimination with the New York City Commission on Human Rights within a one-year period or a complaint in court, with a three-year statute of limitations. Remedies include back pay, reinstatement, compensatory and punitive damages, and attorney’s fees and costs.

New York City joins 12 other jurisdictions that have prohibited credit checks in employment-related decisions, including the city of Chicago as well as California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont, and Washington.

Read the New York City legislation here.

June 12th, 2015|Categories: Compliance Corner for Employment Decisions|Tags: , , , |

EEOC loses – again – in challenge to background checks

In the latest blow to the Equal Employment Opportunity Commission’s (the “EEOC”) attempts to regulate employers’ use of background checks, the Fourth U.S. Circuit Court of Appeals threw out a case in a scathing opinion that expressed disappointment in the agency’s litigation conduct.

The controversy began in April 2012, when the EEOC released guidance on the issue of criminal background checks for employers. The “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” emphasized that while the use of criminal history does not violate the statute per se, an employer may run afoul of the law if the checks result in systemic discrimination based on a protected category like race, color, national origin, religion, or sex.

As an alternative, the agency suggested employers strive to perform individualized assessments of prospective employees, and consider factors such as the nature of the crime and its relation to the potential job, as well as the individual’s rehabilitation efforts and the length of time that has passed since the conviction.

The EEOC then followed up with multiple lawsuits alleging that certain employers engaged in the discriminatory use of background checks, disproportionately screening out African-American workers in cases filed against BMW Manufacturing in South Carolina, Dollar General in Illinois, Kaplan Higher Education Company in Ohio, and Freeman Company in Maryland.

To date, all of the lawsuits have been dismissed and the agency has faced criticism about its efforts to pursue such cases from both industry and lawmakers. The most recent critic: the Fourth Circuit.

In the agency’s case against Freeman Company, the EEOC alleged the company’s use of criminal background checks for all applicants and credit checks for “credit sensitive” positions had an unlawful disparate impact on black and male job applicants. To support its case, the agency produced expert reports by an industrial/organizational psychologist. But the federal district court granted summary judgment for Freeman, finding the psychologist’s reports “rife with analytical errors” and “completely unreliable.”

The Fourth Circuit affirmed the ruling, identifying “an alarming number of errors and analytical fallacies” in the reports, “making it impossible to rely on any of his conclusions.” Freeman provided complete background screening logs for thousands of applicants to the EEOC but the psychologist “cherry-picked” data, the court said, omitting information from half of the company’s branch offices while purporting to analyze all the background checks, and further failed to utilize an appropriate sample size, selecting the vast majority of data to focus on before October 14, 2008.

Although the relevant time period extended to August 31, 2011 and Freeman conducted over 1,500 criminal checks and more than 300 credit reviews between October 14, 2008 and August 31, 2011, the psychologist used data from only 19 applicants during that time, just one of whom passed the check.

A “mind-boggling number of errors and unexplained discrepancies” existed in the psychologist’s database, the panel added, rejecting the EEOC’s argument that the mistakes originated in Freeman’s data. The psychologist introduced the errors, the court said, and further managed to introduce fresh errors when he tried to supplement his original reports with corrections.

“The sheer number of mistakes and omissions in the analysis renders it “outside the range where experts might reasonably differ,” the three-judge panel wrote. One of the panelists added a concurring opinion expressing concern with the “EEOC’s disappointing litigation conduct” and continued efforts to defend the psychologist’s work despite other courts reaching similar conclusions about his reports.

“The Commission’s conduct in this case suggets that its exercise of vigilance has been lacking,” according to the concurring opinion. “It would serve the agency well in the future to reconsider how it might better discharge the responsibilities delegated to it or face consquences for failing to do so.”

With public criticism, zero litigation victories, and a counterargument from one defendant that its background check procedures are the same as those conducted by the agency itself, the Fourth Circuit’s decision does not bode well for the future of EEOC challenges to background checks. That said, employers should still be cautious and utilize background reports in a non-discriminatory manner.

Read the EEOC guidance.

Read the opinion in EEOC v. Freeman.

May 8th, 2015|Categories: Compliance Corner for Employment Decisions|Tags: , , , |

No number, no lawsuit

Tossing a lawsuit alleging religious discrimination, the Sixth U.S. Circuit Court of Appeals found that an applicant could not sue after refusing to provide his Social Security number to a prospective employer. The plaintiff, an applicant for a position with an energy company, claimed that he had no number because he “disclaimed and disavowed it” on account of his sincerely held religious beliefs.

The company’s refusal to hire the plaintiff violated Title VII and Ohio state law, the complaint charged, requesting both injunctive relief in the form of a job and monetary damages. A federal district court judge dismissed the lawsuit, and the federal appellate panel affirmed.

Courts considering the issue apply a two-step analysis, the Sixth Circuit explained. First, the court determines whether the plaintiff established a “prima facie case of religious discrimination,” which requires proof that the plaintiff “(1) holds a sincere religious belief that conflicts with an employment requirement; (2) has informed the employer about the conflicts; and (3) was discharged or disciplined for failing to comply with the conflicting employment requirement.” If the plaintiff manages to establish a prima facie case, the burden shifts to the employer to show it could not “reasonably accommodate” the religious beliefs without “undue hardship.”

This suit failed under the first step, the panel said, because the Internal Revenue Code mandates that employers collect and provide the Social Security numbers of their employees. Because the company’s collection of the plaintiff’s number was a “requirement imposed by law” and not an “employment requirement,” the court had no need to consider the sincerity of the plaintiff’s beliefs.

The panel also noted that every other federal appellate court to consider the issue has concluded “that Title VII does not require an employer to reasonably accommodate an employee’s religious beliefs if such accommodation would violate a federal statute,” citing decisions from the Fourth, Eighth, Ninth, and Tenth Circuits, as well as federal district courts in Michigan and Virginia.

All of the courts have arrived “at the same, sensible conclusion: ‘

[A]n employer is not liable under Title VII when accommodating an employee’s religious beliefs would require the employer to violate federal … law,” the Sixth Circuit wrote. “This conclusion is consistent with Title VII’s text, which says nothing that might license an employer to disregard other federal statutes in the name of reasonably accommodating an employee’s religious practices.”

For employers, the decision provides even greater peace of mind. With five federal appellate courts in agreement that a religious discrimination claim will not stand against an employer that complies with federal requirements to collect an applicant’s Social Security number, companies do not have to worry about the merits of a Title VII lawsuit under such circumstances.

Read the opinion.

May 8th, 2015|Categories: Compliance Corner for Employment Decisions|Tags: , |

Do you know about specialty consumer reports?

Credit reports are a part of life, whether applying for a credit card or purchasing a home. But what about specialty consumer reports?

Many people are unaware that dozens of other types of consumer reports exist, filled with information about medical and prescription history, for example, or insurance claims. Specialty consumer reports gather data from a wide variety of sources including information provided by consumers on applications (such as an apartment lease or a wireless phone contract) as well as public documents like criminal records and marriage licenses.

The reports provide information geared for a specific industry. A truck driving company might purchase reports that detail a job applicant’s driving record and motor vehicle insurance claims while an insurer will review a report with claims filed by a homeowner to check an individual’s historic use of insurance policies. Other niche reports provide data on loan balances, information about any bounced checks, and bank account history for lenders; another company tracks consumers’ product returns and will alert large retailers for fraud prevention purposes.

The Fair Credit Reporting Act (the “FCRA”) entitles consumers to one free report per year from any nationwide credit or specialty reporting agency (plus another free report if an adverse action has been taken, or the consumer disputes an item in the report that was corrected).

Recently, consumer rights group Consumer Action focused on the issue of specialty consumer reports in an “Insider’s Guide to Specialty Consumer Reports: A Guide to Obtaining, Understanding and Managing Your Information,” complete with a directory of furnishers. Staffers went through the process of requesting their own reports to help provide information for consumers about the types of reports available and their rights to request reports or correct errors.

Access the Consumer Action guide.

Read the directory of specialty consumer report furnishers.

May 8th, 2015|Categories: Compliance Corner for Employment Decisions|Tags: , , , |

Trend of suing employers for technical FCRA violations continues

The threat of a multi-million potential class action lawsuit alleging technical violations of the Fair Credit Reporting Act (FCRA) continues to haunt employers, even where the plaintiffs have alleged or proven no harm.

Pursuant to the statute, employers are required to “provide prior written notice before they can procure a consumer report about any employee or applicant for employment.” Just as important, 15 U.S.C. Section 1681b(b)(2)(A)(i) adds that the notice must be given “in a document that consists solely of the disclosure.”

Seeking to take advantage of the statutory damages available under the FCRA – from $100 up to $1,000 for a willful violation – plaintiffs have challenged employers’ use of a disclosure form that combined the written notice to procure a consumer report with other information or documents, such as an application form.

The trend to sue for FCRA technical violations was started by Singleton v. Domino’s Pizza, LLC in the U.S. District Court of Maryland (case no. 8:11-cv-01823-DKC) where the court ruled that inclusion of a liability release in the employer’s disclosure/authorization form violates the FCRA. Domino’s ended up reaching a settlement with the plaintiffs in 2013 for $2.5 million.

Also taking a strict reading of the statutory language, the Western District Court of Pennsylvania ruled in 2013 in Reardon v. Closetmaid Corporation (case no. 2:0S-cv-01730) that an employer could be liable for the combination of a disclosure/authorization with a liability waiver, and granted summary judgment in favor of the roughly 1,800 job applicants.

In a more recent example, a class of applicants sued Publix Super Markets in the U.S. District Court for the Middle District of Tennessee (case no. 3:14-cv-00720) also based on a violation of the sole disclosure requirement and release of liability. With Domino’s and Closetmaid’s payouts looming over its head and a class of 90,000, Publix agreed to settle the claims for $6.8 million earlier last year.

Although these companies opted not to fight the suits on their merits, a defendant in a case filed in the U.S. District Court for the Eastern District of California (case no. 1:14-742-WBS-BAM) did and won dismissal in October 2014. Syed v. M-I LLC involved identical claims but the judge reached a contrary decision, finding that the FCRA text was not as clear-cut as the plaintiff claimed. Immediately following the subsection mandating the sole disclosure of the employer’s intent to procure a consumer report is a provision that states that the consumer’s authorization is to “be made on the document referred to in clause (i)” – “that is, the same document as the disclosure,” the court noted, and “…thus, the statute itself suggests that the term ‘solely’ is more flexible than at first it may appear…”

The Syed decision is the second one that may give hope to employers facing similar suits. (There are at least six class actions pending.) But the obvious answer for companies looking to avoid the problem entirely is simple: use a standalone disclosure/authorization form that is separate from any other information or documents.

January 29th, 2015|Categories: Compliance Corner for Employment Decisions|Tags: , , , |

Medical marijuana laws put employers in a tough spot

The growing number of jurisdictions permitting medical marijuana is putting employers in a tough position. One the one hand, marijuana remains illegal under federal law and a workforce under the influence isn’t much of a workforce at all. On the other hand, 23 states and the District of Columbia now permit the use of marijuana for regulated medical purposes and some state laws include anti-discrimination provisions prohibiting employers from taking action against employees based on their status as a registered medical marijuana user.

A first-of-its-kind lawsuit demonstrates the conundrum. In December, the American Civil Liberties Union filed suit in a Rhode Island state court on behalf of an individual who allegedly was denied an internship after she disclosed that she lawfully carried a medical marijuana card for severe migraines.

According to the complaint, the company told the applicant that she had been rejected because of her status as a cardholder, and despite promises not to bring medical marijuana on the premises or come to work under the influence, the applicant was denied the position.

The lawsuit charges that the company violated Rhode Island’s medical marijuana law which prohibits schools, employers, and landlords from refusing “to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a cardholder.” The complaint – which also includes allegations of disability discrimination under state law – seeks compensatory and punitive damages.

Employers in states permitting medical marijuana would be well-advised to review their relevant law when considering marijuana use or marijuana-related criminal records in employment decisions. While Rhode Island is not alone in including an anti-discrimination requirement in its law, joined by Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, and New York, other states – including California, Massachusetts, and New York – are clear that employers have no obligation to accommodate an employee’s medical marijuana use or permit them to work under the influence.

Read the complaint.

January 29th, 2015|Categories: Compliance Corner for Employment Decisions|Tags: , , , , , , , , , , , , |

Class action charges LinkedIn with violations of FCRA

According to a new putative class action filed in California federal court, social networking site LinkedIn runs afoul of the Fair Credit Reporting Act (FCRA).

The plaintiffs claim that LinkedIn’s reference search functionality allows prospective employers, among others, to obtain reports on job applicants with profiles on the site. LinkedIn’s dissemination of “Reference Reports” – that are created based on a user’s profile and connections to form a list of former supervisors and co-workers as possible references – are available for users who pay a monthly or annual subscription fee.

“LinkedIn has created a marketplace in consumer employment information, where it sells employment information, that may or may not be accurate, and that is has obtained in part from unwitting members, and without complying with the FCRA,” according to the complaint, which noted the site has more than 300 million members and one million jobs listed.

The Reference Reports bring LinkedIn within the purview of the FCRA, and yet the company fails to comply with a host of statutory requirements, according to the complaint.

Specifically, the complaint alleges that the site violates Section 1581(b) by furnishing consumer reports for employment purposes without obtaining the certifications required by the statute or a summary of the consumer’s rights and also does not maintain any of the procedures required by Section 1681e(a) to limit the furnishing of consumer reports to the limited purposes of the statute. In addition, Section 1681e(b) mandates that all consumer reporting agencies follow reasonable procedures to assure the maximum possible accuracy of consumer report information, Section 1681e(d) requires that a user notice be provided to individuals when a report is provided about them, and Section 1681b states that reports can only be provided after an inquiry to ensure the report is used for a “permissible purpose.” None of these statutory requirements were met by LinkedIn, the suit alleges.

“[A]ny potential employer can anonymously dig into the employment history of any LinkedIn member, and make hiring and firing decisions based upon the information they gather, without the knowledge of the member, and without any safeguards in place as to the accuracy of the information that the potential employer has obtained,” Sweet and the other plaintiffs claim. “Such secrecy in dealing in consumer information directly contradicts the express purposes of the FCRA.”

The main plaintiff alleges that she located a job opening on the site and submitted her resume through LinkedIn. She received a notification from the site that the general manager of the employer had viewed her profile and she was offered the job after an interview. The general manager declined the plaintiff’s offer to provide a list of references but later called back to rescind the offer, telling her that he had checked some of her references and changed his mind.

The plaintiffs seek to certify a nationwide class of LinkedIn users who had a Reference Report run on them as well as a subclass of users who applied for employment via the site and had a Report generated by a potential employer. As for remedies, the putative class requests actual, statutory, and punitive damages, as well as attorney’s fees and costs.

To read the complaint in Sweet v. LinkedIn Corporation, click here.

December 3rd, 2014|Categories: Compliance Corner for Employment Decisions|Tags: , , , |

SEC considers background check rule proposed by FINRA

Financial institutions could face expanded obligations to conduct background screening of applicants for registration pursuant to a rule proposed by the Financial Industry Regulatory Authority (FINRA) to the Securities and Exchange Commission (SEC).

As currently drafted, the National Association of Securities Dealers (NASD) Rule 3010(e), the Responsibility of Member to Investigate Applicants for Registration, provides that a firm “must ascertain by investigation the good character, business reputation, qualifications and experience of an applicant before the firm applies to register that applicant with FINRA,” the regulator explained.

Seeking to “streamline and clarify members’ obligations relating to background investigation, which will, in turn, improve members’ compliance efforts,” FINRA proposed the addition of background checks to the Rule for the SEC’s consideration.

The change would mandate that firms verify the accuracy and completeness of the information in an applicant’s Form U4 (Uniform Application for Securities Industry Registration or Transfer) for first-time applicants as well as transfers. Written procedures for conducting the background check – including a public records search – must also be established.

While the rule is prospective, FINRA announced that it would take a look at currently registered representatives. The financial regulator intends to begin its efforts with a search of all publicly available criminal records for the roughly 630,000 registered individuals who have not been fingerprinted within the last five years; going forward, FINRA will periodically review public records “to ascertain the accuracy and completeness of the information available to investors, regulators and firms,” the agency said.

To read the Federal Register notice: click here.

December 3rd, 2014|Categories: Compliance Corner for Employment Decisions|Tags: , , , |

New York City’s new bill would restrict using credit reports for employment decisions

Last month, the New York City Council’s Committee on Civil Rights held a hearing on a bill that would amend the city’s administrative code, prohibiting employers from using consumer credit reports for personnel decisions. Although the hearing ended without a disposition, it is expected that this bill will pass in some form in the near future. The Committee is holding a separate hearing in December on a bill that would prohibit employment discrimination based on an applicant’s or employee’s criminal history.

October 15th, 2014|Categories: Compliance Corner for Employment Decisions|Tags: , , |
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