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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

  • work Practice Area

    Employment and Workers Comp

Date & Time
  • event Date

    Thursday, December 17, 2020

  • 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 course will provide guidance to employment counsel regarding class action litigation brought under the Fair Credit Reporting Act (FCRA) as these cases are on the rise, particularly in California, after the U.S. Court of Appeals for the Ninth Circuit issued a 2017 decision applying a hypertechnical approach to the FCRA's disclosure requirements. The panel will provide best practices on utilizing background checks as part of the hiring process while avoiding lawsuits for noncompliance with disclosure or adverse action requirements. Plaintiffs' firms will also be advised on the potential statutory and actual damages, punitive damages, costs, and attorneys' fees that can be acquired from these types of cases.

Faculty

Cindy D. Hanson
Partner
Troutman Pepper Locke LLP

Ms. Hanson focuses her practice on complex commercial litigation and class action defense. She has handled hundreds of matters under the Fair Credit Reporting Act. Her practice includes the representation of both consumer reporting agencies and entities who furnish information to consumer reporting agencies.

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Pamela Q. Devata
Partner, Background Screening Compliance and Litigation Defense Team Leader
Seyfarth Shaw LLP

Ms. Devata has extensive knowledge and experience on all things relating to the use of criminal, credit, and other background checks related to hiring. Both employers and background screening companies (consumer reporting agencies) look to Ms. Devata for guidance based on her deep knowledge and experience practicing in this area for nearly 20 years. She has a wide range of experience in this area of law. Ms. Devata has handled hundreds of class action lawsuits and numerous single-plaintiff cases. She has also discussed these topics to key stakeholders at thousands of speaking engagements. She even testified in October 2010 at the Public Meeting of the EEOC in Washington, DC, about the use of credit checks as a screening tool for job applicants. Ms. Devata is recognized nationwide for her vast knowledge on all things related to background checks. She counsels employers, marketplaces, staffing companies, property management companies, insurance companies, and background screening companies on the intricacies of the FCRA and laws affecting hiring and screening processes. She represents more than 200 background screening companies of all sizes.

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Description

The Ninth Circuit recently issued two mostly pro-employer federal FCRA background check decisions in Walker v. Fred Meyer Inc. and Luna v. Hansen & Adkins Transport Inc. that create requirements for background check disclosures.

The FCRA requires employers who obtain a consumer report on job applicants to disclose that process "in a document that consists solely of the disclosure." Further, in addition to the standalone requirement, the FCRA and California's FCRA-like disclosure requirements found in the Investigative Consumer Reporting Agencies Act both require the disclosure form to be "clear and conspicuous." According to the court, "clear" under the FCRA means "reasonably understandable" and "conspicuous" means "readily noticeable to the consumer."

The Ninth Circuit cases also clarified what is considered adverse action after a background check is conducted, and provided guidance on a reasonable waiting period, as well as how post-adverse action notices must be drafted to be compliant. Employers' counsel must be aware of these standards and the potential penalties that businesses are subject to in the event of a breach. Plaintiff's counsel should be familiar with the many options for potential statutory and actual damages, punitive damages, costs, and attorneys' fees that can be acquired from these types of cases.

State and federal class action litigation on these matters continues to rise, and decisions have created an array of guidance regarding FCRA and background checks.

Listen as our expert panel provides employment counsel with best practices and tips on responding to the guidance in these recent Ninth Circuit FCRA opinions.

Outline

  1. FCRA cases
    1. Walker v. Fred Meyer Inc.
    2. Luna v. Hansen & Adkins Transport Inc.
      1. Concise explanatory language
      2. Simultaneous disclosures
      3. Separate authorization form
  2. Disclosure requirements
    1. Standalone requirement
    2. Clear and conspicuous
  3. Adverse action
    1. Disclosure and pre-authorization.
    2. Pre-adverse action letter/copy of report/rights under FCRA
    3. Waiting period
    4. Adverse action letter
  4. Potential penalties for noncompliance
  5. State and federal litigation
    1. Petco
    2. DISH Network
    3. Starbucks

Benefits

The panel will review these and other key topics:

  • What guidance on FCRA and employment law has been provided in the recent Ninth Circuit cases?
  • What are the disclosure requirements for an FCRA background check?
  • What types of adverse actions are considered under FCRA background checks and what are the steps an employer must take?
  • What is the status of current FCRA cases in state and federal litigation?