On Thursday, February 21, 2019, three Womble Bond Dickinson attorneys had the honor of presenting to a group of approximately 400 business people at ePlace Solutions, Inc.’s webinar, “Employee Privacy: The ‘Rights’ That Will Shock You.”

Nadia D. Adams started the webinar by explaining the background of the Fair Credit Reporting Act (“FCRA”), including that it was enacted in 1970 to establish rules and guidelines to promote accuracy and fairness of credit reporting.  Nadia reminded listeners that when it comes to obtaining a consumer report, one must have a permissible purpose. Some examples of permissible purposes are: by court order or consumer request, or – for employment purposes – to a person which the credit reporting agency has reason to believe (a) intends to use the information for employment purposes or (b) otherwise has a legitimate business need for the information: (i) in connection with a business transaction that is initiated by the consumer; or (ii) to review an account to determine whether the consumer continues to meet the terms of the account.

Ashley Kutz Kelley explained that FCRA comes into play anytime and every time an employer obtains a background check from a third party for employment purposes.  Ashley walked the listeners through the five requirements for employers obtaining background checks.  The rules are nuanced, but in summary, the five steps are:

  1. Disclosure: employers must disclose to the applicant or employee that they are going to obtain a background report;
  2. Authorization: employers must get written authorization from the applicant or employee to obtain a background report;
  3. Certification: once employers get written authorization from the applicant or employee to obtain a background report, the employer must certify to the consumer reporting agency that: (i) the employer notified the applicant or employee and got their permission to obtain the report; (ii) the employer complied with the FCRA requirements; and (iii) the employer will not discriminate or misuse the information;
  4. Pre-Adverse Action: before an employer can take an adverse action based on information obtained in the report, employers must – among other things – notify the applicant that an adverse decision is being considered and provide the applicant with a copy of the report along with several disclosures;
  5. Adverse Action: after the allotted time has passed, the employer must notify the applicant / employee if an adverse decision has been made.  The notice itself has several specific requirements.

Shane Micheil discussed state laws that mirror and/or supplement FCRA and the importance that employers familiarize themselves with state-specific rules.  For example, he discussed California’s Fair Chance Act, which generally prohibits employers of more than 5 employees from asking an applicant’s conviction history before making them a job offer. This type of law is also known as a “Ban the Box” law.

Then it was back to Nadia D. Adams, who closed out the webinar by discussing the importance of conducting a Spokeo Article III standing analysis at the outset of every FCRA case.  Nadia also highlighted several recent FCRA employment-related cases, including many we discussed here on the blog, like the Massive Walmart FCRA Class Action and a case about how Confusing Background Check Disclosures Can Land Employers in Hot Water.

The webinar was a great success and we want to thank ePlace Solutions, Inc. for organizing and producing it.