Excerpted from an SHRM Blog by Roy Maurer
Organizations that conduct pre-employment background checks in 2018 will need to focus on compliance in the wake of increased class-action litigation and adapt to screening more workers in nontraditional employment relationships.
FCRA Class-Action Lawsuits Will Continue
Employers faced a wave of class-action lawsuits alleging technical violations under the Fair Credit Reporting Act (FCRA) — like failure to provide notice to applicants in a stand-alone format and getting written permission before running a background check — in 2017.
That’s even after the 2016 U.S. Supreme Court ruling in Spokeo v. Robins holding that plaintiffs must prove “concrete injury” in class-action lawsuits under the FCRA.
The Supreme Court stated in its opinion that plaintiffs could not allege procedural violations, “divorced from any concrete harm,” which requires an injury to be “actual or imminent, not conjectural or hypothetical.”
But instead of clearing up the issue, the court’s decision to send the case back to the Ninth Circuit Court of Appeals to determine whether the plaintiff in the case suffered real harm has led to confusion among courts across the country.
“Lower courts have continued to allow plaintiffs access to federal courts with a simple allegation of a bare procedural violation or technical inaccuracy, resulting in forum-shopping by plaintiffs for the court most likely to rule in their favor,” said Melissa Sorenson, executive director of the National Association of Professional Background Screeners (NAPBS).
You can read the full post here.