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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Employment and Workers Comp

Date & Time
  • event Date

    Wednesday, January 29, 2025

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE webinar will examine recent Consumer Financial Protection Bureau (CFPB) guidance cautioning employers on the use of AI and other technology to track, assess, and evaluate workers to be sure they are doing so in compliance with the Fair Credit Reporting Act (FCRA). The panel will discuss FCRA requirements for employers generally and address new FCRA compliance challenges for employers when using advanced technologies and data collection solutions. The panel will also offer best practices to mitigate the risk of FCRA litigation and penalties.

Faculty

Mehul Madia
Special Counsel
Sheppard Mullin Richter & Hampton LLP

Mr. Mehul counsels many of the nation’s banks and non-bank financial institutions, lenders, and fintech companies on sensitive regulatory, enforcement, and litigation matters. As a former senior attorney at the Consumer Financial Protection Bureau (CFPB), he has extensive experience representing clients before federal and state government agencies. Mr. Mehul has an active enforcement and regulatory practice having represented companies and executives before a host of government agencies including the CFPB, the DOJ, the SEC, HUD, and the FDIC, among others. He has counseled clients on matters involving unfair, deceptive or abusive acts or practices, the Fair Credit Reporting Act, the Equal Credit Opportunity Act, the Electronic Funds Transfer Act, the Card Act, the Truth in Lending Act, as well as various state consumer protection laws. 

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Danielle Ochs
Shareholder, Co-Chair Technology Practice Group
Ogletree Deakins

Ms. Ochs has nearly 30 years of experience representing employers in matters involving employment issues and employment-based technology, trade secrets, and unfair competition in federal and state trial and appellate courts, arbitration, and administrative agencies. Her experience includes successfully defending employers in both jury and bench trials and in arbitration proceedings. She currently dedicates a significant portion of her practice to trial court litigation, arbitration, and strategic conflict management. Ms. Ochs also has active advice and counsel, training, and investigations practices, working closely with employers on a variety of employment and employment-based technology, trade secret, and unfair competition compliance issues with the goal of avoiding litigation. She represents an array of “tech” employers, as well as employers in a broad array of other local, national, and international industries. Ms. Ochs regularly speaks across the country on a range of employment, and employment-based technology, trade secret and unfair competition issues.

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Description

With the advent of artificial intelligence and other tracking technologies, the scope of information that employers may obtain on employees or potential employees has expanded exponentially in recent years. As a result, the CFPB recently issued guidance advising employers about using tracking technology, AI, software, or other outside profiling data for employment purposes to be sure they are doing so in compliance with the FCRA.

While most employers are familiar with FCRA obligations when ordering "consumer reports" (e.g., pre-employment background checks), they should now be aware of whether software they are using and/or information provided by third-party vendors may also implicate the FCRA. The CFPB guidance specifically references "background dossiers" that may be used to make employment decisions including hiring, promotion, and retention. These dossiers can include data from public databases, social media, and productivity tracking software and contain information including criminal history, personal habits and attributes, and even biometric information.

As technology and data collection methods advance, counsel and employer clients should understand when FCRA requirements apply to remain compliant and mitigate the risk of costly litigation and penalties.

Listen as our expert panel examines the CFPB's recent guidance and discusses how new uses of AI and other expansive data collection techniques will impact employer compliance under the FCRA.

Outline

  1. Introduction: FCRA and employment
    1. Consumer reports
    2. Consumer reporting agencies
    3. FCRA obligations applicable to reports for employment purposes
  2. Advanced technology and AI impact on data collection and reporting
    1. New technological tools and employer uses of employee data
    2. FCRA risks
  3. CFPB guidance
    1. Expanded definition of consumer reporting agencies
    2. Data used for "employment purposes"
    3. Analyzing whether vendor/technology/data is within FCRA scope
    4. Employer obligations
    5. Potential penalties for noncompliance
  4. Other regulation of AI use for employment decision-making
  5. Best practices for policy development and mitigating risk of FCRA litigation

Benefits

The panel will review these and other important considerations:

  • How has the advent of AI and other technology increased the scope of employee information that may be collected by employers? How are employers using advanced technology to evaluate and track workers beyond the scope of the traditional pre-employment background checks?
  • Under what circumstances does information gathered on employees or potential employees fall within the scope of the FCRA? What are the FCRA's requirements for employers?
  • What are best practices for policy development and mitigating the risk of FCRA litigation?