Dive Brief:

• An abundance of class action lawsuits is forcing employers to defend their background check disclosure and authorization forms, according to an article at the National Law Review.
• The current focus is on disclosure forms that include "extraneous" information, writes Mark Wiletsky, a partner at Holland & Hart LLP.
• Employers who obtain background check reports from a third party, such as a consumer reporting agency that provides employment-related screening services, needs to ensure the checks comply with the Fair Credit Reporting Act (FCRA).

Dive Insight:

Wiletsky writes that the FCRA, among other things, requires that employers disclose to applicants/employees that a consumer report may be obtained for employment purposes before requesting the report. Specifically, he adds, an employer or prospective employer must provide “a clear and conspicuous disclosure” in writing to the applicant on whom the report is to be conducted and that disclosure must be “in a document that consists solely of the disclosure.” 

This stand-alone disclosure requirement is driving the growth of class action lawsuits. Applicants (and their class-action lawyers) scrutinize the background check disclosure forms used by employers and if there is any extraneous information included on the form, they file a lawsuit alleging that the employer violated the FCRA by failing to provide a "stand-alone disclosure."

Wiletsky advises that employers take the time to review your background check disclosure and authorization forms now, and ensure sure any FCRA disclosure and authorization is not imbedded or buried in an employment application. "These sorts of class actions can be easy pickings, so taking action now will go a long way toward avoiding being hauled into court," he writes.