Wegmans Hit with Class Action for FCRA Violations Related to Background Checks

wegmans_logoTwo Wegmans Food Market employees have accused the supermarket chain of violating the FCRA by inappropriately using consumer background checks to screen job applicants and not telling them first.

Plaintiffs Ashleigh Wheeler, who was hired in 2013 as a cashier, and Jerah Brewster, who was hired in 2015 by the grocer as a pharmacy technician and later worked as a coffee shop attendant, filed the proposed class action lawsuit in New York federal court.

Wheeler and Brewster say they completed Wegmans’ standard electronic documents related to their employment which included an authorization to conduct a background check and a credit check.

However, the pair contend that Wegmans’ online authorization for a background check failed to properly disclose to them that the grocery chain would obtain consumer background reports.

According to the class action, Wegmans, “acted willfully and in deliberate or reckless disregard of its obligations and the rights of plaintiffs Wheeler, Brewster and other class members without making the required disclosure.”

Additionally, under the FCRA, job applicants have a right to obtain their consumer reports and to have errors in the reports corrected. But Wegmans’ background check authorization document allegedly failed to inform job applicants of this right.

Instead, the lawsuit states that the document contained wording that released Wegmans from all liabilities related to information found in the background check.

The authorization allegedly included the following language: “I hereby release Wegmans, my former employers, and all other persons or entities contacted by Wegmans from any and all claims, demands, or liabilities arising out of or in any way related to the release, disclosure, and use of such information.”

The Plaintiffs’ allege that the inclusion of this provision in the same document as the background authorization is a direct violation of the FCRA.

The pair claim they were misled about the nature and purpose of giving consent for the consumer background check and had their privacy subsequently invaded.

They are seeking to represent a nationwide Class of all Wegmans employees and job applicants who were the subjects of consumer reports obtained by the supermarket chain over the past five years.

The lawsuit is requesting not less than $100 but not more than $1,000 in compensation for each FCRA violation as well as punitive damages.

Over and over again we hear about class action lawsuits regarding FCRA violations. The FCRA is very clear. Organizations must ensure they are in compliance or risk being sued. Partnering with a reputable background screening company is one way of ensuring compliance. Contact CARCO Group to see how we can help – 1-866-557-5984.

 

 

Wheeler, et al. v. Wegmans Food Markets Inc., Case No. 6:16-cv-06825, in the U.S. District Court for the Western District of New York.

Remember to use the new Form I-9 as of January 22, 2017

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The revised Form I-9 and instructions on how to use it can be found on the USCIS website.

Some notable changes:

  • It asks for “other last names used” rather than “other names used”
  • The certification process for certain foreign nationals has been streamlined
  • It has dedicated areas for adding additional information, rather than having to add it in the margins
  • Prompts have been added to help ensure information is entered correctly, and
  • Multiple preparers and translators can now be entered.

USCIS is also saying that the revised Form I-9 is easier to complete using a computer, thanks to:

  • Drop-down lists and calendars for filling in dates,
  • On-screen instructions for each field
  • Easy-to-access full instructions, and
  • An option to clear the form and start over.

To ensure I-9/E-Verify compliance, contact CARCO today 1-866-557-5984 or click here to be contacted by a CARCO Specialist.

 

 

City of Los Angeles Bans the Box for Private Employers

bantheboxEffective January 22, 2017, the Los Angeles Fair Chance Initiative for Hiring Ordinance will ban private employers from asking about an applicant’s criminal history or conducting a criminal background check until after extending a conditional offer that is only conditioned on the result of the check.

The Ordinance applies to any private employer that employs at least 10 people who perform at least two hours of work each week within the boundaries of the City of Los Angeles. Exceptions include employers who are required by law to obtain an applicant’s convictions, or those who are prohibited by law to hire an individual convicted of a crime.

Banned Hiring Practices

The Ordinance is one of the strongest fair chance hiring laws in the nation, stating that an Employer shall not:

  1. Include on any application for employment any questions that seek the disclosure of an applicant’s criminal history.
  2.  At any time or by any means, inquire about or require disclosure of an applicant’s criminal history unless and until a conditional offer of employment has been made.
  3. Take adverse action against an applicant to whom a conditional offer has been made based on criminal history unless the employer performs a written assessment linking the applicant’s criminal history with risks inherent in the duties of the position at hand.

Employer Assessment of Criminal History

  1.  The employer must provide the applicant with a Fair Chance Process, including written notifications of the proposed adverse action, a copy of the written assessment and any other information supporting the adverse action.
  2. The employer cannot take adverse action or fill the position sought by the applicant for a period of at least 5 business days after the applicant is informed of the proposed adverse action in order to allow the applicant to complete the Fair Chance Process.
  3. If the applicant provides information or documentation during the Fair Chance Process, the employer must consider the information and perform a written assessment of the proposed adverse action.
  4. If after reassessing the proposed adverse action decides to proceed with the adverse action, the employer must notify the applicant and provide a copy of the written assessment.

Notice and Posting Requirements

An employer must state in all advertisements that it will consider qualified applicants with criminal histories in a manner consistent with the requirements of the Ordinance. Employers also must post a notice informing applicants of the provisions of the Ordinance in a “conspicuous place at every workplace, job site or other location in the City under the employer’s control and visited by employment applicants.” Employers must also send a copy of the notice to each labor union with which they have a collective bargaining agreement covering employees located in the City.

Record Retention

Employers must retain all records and documents related to applications, written assessments, and reassessments performed pursuant to the Ordinance for three years following the receipt of a job application.

Enforcement and Penalties

Civil enforcement can be brought after applicant or employee has reported the violation to the Designated Administrative Agency (DAA), which must be done within one year of the alleged violation. At that time, the administrative process must be completed or a hearing officer’s decision must be rendered, whichever is later.

In terms of administrative enforcement,  penalties and administrative fines for an employer violation can be up to $500 for the first violation, up to $1,000 for the second violation and up to $2,000 for the third and subsequent violations. Penalties and fines will not apply until July 1, 2017. Prior to July 1, 2017, the DAA will issue written warnings to employers that violate the Ordinance.

Recommended Actions in Preparation for January 22, 2017

  • If you have not already done so, review job applications and remove any criminal records question.
  • Review all employment material and remove any question regarding the applicant’s willingness to submit to a background check before a conditional offer.
  • Rescind any automatic rules in place to exclude candidates with criminal records from employment.
  • Review your hiring and interview policies and processes. Revise them to delay inquiry into criminal history until AFTER a conditional offer of employment.
  • Train all individuals involved in recruitment, hiring, interviewing, and individualized assessments to comply with the requirements of this law.
  • Establish protocol for handling individualized assessments.

To help ensure Ban the Box compliance, contact a CARCO Specialist at 1-866-557-5984 or click here.

 

 

Rite Aid Seeks Dismissal of Job Applicant Background Check Class Action

rite-aid-logoOn December 6th, Rite Aid filed a motion to dismiss a proposed FCRA class-action in the U.S. District Court for the Eastern District of Pennsylvania.

According to the complaint, Rite Aid violated the FCRA by allegedly failing to allow job applicants to challenge inaccurate or misleading reports after they were rejected for employment. The Defendant claims that the case should be dismissed because the Plaintiff, Kyra Moore, already settled claims with the background screening company.

Prior to applying for a job at Rite Aid, Moore was employed by CVS from 2006 to 2010. She signed a statement and was dismissed from her employment with CVS when a loss prevention officer confronted Moore about missing store stock.

In 2011, Moore applied for a store supervisor position at Rite Aid, which subjected her to a background screening by Lexus Nexus. Moore contends she was disqualified from employment at Rite Aid in April 2011 because of her signed statement regarding the alleged theft at CVS. However, according to Moore, a copy of that statement was not provided to her along with Rite Aid’s adverse action notice.

Rite Aid argues that in her complaint, Moore alleges that the background screening company acted as Rite Aid’s “agent” for purposes of the FCRA. Since Moore settled claims with the background screening company, any claims arising from the acts of Rite Aid’s agent, releases the company from alleged FCRA violations.

Rite Aid says Moore is now trying to “milk her claims for maximum personal benefit,” pointing to the fact that in 2013 Moore already filed two class actions and an EEOC proceeding.

 

Moore v. Rite Aid Hdqtrs Corp. et al., case number 2:13-cv-01515, in the U.S. District Court for the Eastern District of Pennsylvania.

Caterpillar Hit With Age Bias Suit Over Social Media Firing

caterpillar-logoCaterpillar Inc. is being sued for alleged unlawful discrimination based on age when it fired an over-40 employee because of her off-duty Facebook post.  The fired employee claims she was a victim of disparate treatment based on age. But Caterpillar said the employee was terminated because it feared she might be harassing a co-worker whom she commented about on Facebook.

Tammy Applebaum worked as a distribution clerk at Caterpillar’s Lafayette, IA, plant.  She alleges she was fired for writing a comment responding to a younger co-worker’s Facebook post. The younger employee was not reprimanded by Caterpillar.

According to the complaint, Natasha Burns, the younger Caterpillar employee, was dating Applebaum’s son. Burns posted a Facebook message, while at work, alluding to the fact that “all the guys wanted to take nude photos” of her. When Applebaum saw the post she posted a comment on Burns’ Facebook page, saying “you’ve been down that road before.”

About two weeks later, Caterpillar told Applebaum she was being terminated immediately because it feared she would create “a hostile working environment” for Burns, according to the complaint.

“Applebaum’s case is less about social media policies than about Caterpillar using a pretext to rid itself of a 52-year-old employee because of her age,” said Jay Meisenhelder who is representing Applebaum in this suit.

Caterpillar claimed Applebaum posed a harassment danger even though she and Burns worked in different departments and Applebaum never approached Burns or exchanged any words with her at work, the complaint said.

Meisenhelder said the company’s decision to fire Applebaum while not disciplining Burns for apparently posting on Facebook during working hours is disparate treatment that violates the Age Discrimination in Employment Act.

According to Bloomberg BNA’s interviews on the case, two attorneys who represent employers in labor and employment cases, but are not involved in this case, had the following to say:

  • John DiNome, a partner with Reed Smith in Philadelphia: Employers might have grounds to discipline or discharge an employee for comments posted online if they can link it to other conduct that might support harassment concerns. However, employers should tread carefully because workers’ off-duty social media posts can be protected activity under the National Labor Relations Act.
  • Michael C. Schmidt, a Cozen O’Connor partner in New York: Employers also need to be careful about regulating their employees’ off-duty conduct because some states, including New York, restrict employers’ actions based on workers’ lawful off-duty conduct. But the “heightened sensitivity” to potential harassment means employers must pay more attention to their employees’ online activity. Employers should at least investigate if they learn about social media posts that might be harassing to co-workers, he said. Harassment that occurs online could leave an employer just as vulnerable to claims as if it happened “in person at the water cooler,” Schmidt said.

Applebaum v. Caterpillar, Inc. , N.D. Ind., No. 16-97, complaint filed 11/25/16.

Judge Dismisses Petco’s Motion to Dismiss Class Action for Violating the FCRA

petco-logo On November 22nd, a California federal court rejected Petco’s motion to dismiss a class-action suit that accuses Petco of not disclosing plans to conduct background checks on potential employees.

According to the court, the Plaintiffs suffered sufficient concrete injury for the case to continue. The Plaintiffs allege that Petco knew it was violating the FCRA when it buried information in pages of paperwork, instead of providing a separate document disclosing the background check.

According to the lawsuit, the FCRA requires that “an employer may not procure a consumer report concerning a job applicant or employee unless a ‘clear and conspicuous’ disclosure is made in a stand-alone document that ‘consists solely of the disclosure’ informing the applicant or employee that a report may be obtained for employment purposes.”

The complaint alleges that instead of a “clear and conspicuous” and separate disclosure, Petco has a text box in the middle of its online application “which appears on a screen with small font wording in the middle that the applicant scrolls through by dragging a scrollbar on the right hand side” called the Background Check Disclosure.

The class action states that if printed out, the disclosure would take up five pages, and which supposedly authorized Petco to conduct regular consumer reports of its applicants and employees. This disclosure does not meet federal requirements, the class action asserts.

In addition, the lawsuit claims that if an employer makes an “adverse decision” based on something in a credit report, they have to notify the consumer of that fact. The complaint alleges that Petco fails to do this.

 

Feist et al. v. Petco Animal Supplies Inc. et al., case number 3:16-cv-01369, in the U.S. District Court for the Southern District of California

 

11 Floods Deluge Used Car Market With Damaged Flood Vehicles: CARCO’s Tips to Avoid Buying Flood Damaged Cars

checkthatvin-smallWith 11 major floods hitting the United States this year alone, tens of thousands of vehicles have been submerged under water, leading to potentially significant damage. Unwitting consumers are at risk of buying a flood-damaged car if they don’t follow two important tips, according to experts.                                                                 

According to the National Insurance Crime Bureau (NICB.org), “unknowingly buying a flood-damaged vehicle may put you and your family in physical and financial danger. A vehicle’s electronic systems are often destroyed from prolonged exposure to water rendering many of its safety features inoperable.”

CARCO experts note that two simple tips can protect consumers from significant issues down the road.  While misrepresenting a flood-damaged vehicle as undamaged is illegal, it happens all too often.

“If a deal looks too good, be careful,” said James Owens, CEO and President of leading pre-insurance auto inspection company CARCO.  “Before buying a vehicle, you should physically inspect it and run a ‘CheckThatVIN’ report, which relies on the most comprehensive online database of vehicles, which was created by federal law.”

Have the vehicle inspected or inspect the vehicle yourself.

  • Look for water marks behind the rugs in the cabin and trunk.
  • Look for rust in the engine compartment.
  • Check for musty odors in the cabin and trunk.
  • Check the wheel wells for signs of submersion.
  • Check that electrical wires are flexible and not brittle or cracking.
  • Was the vehicle parked in a location that had recent flooding?

Run a NMVTIS CheckThatVIN report.

The National Motor Vehicle Title Information System (NMVTIS) was designed to protect prospective buyers and sellers of used cars and trucks from concealed vehicle histories.

Created by federal law, this system is the only publicly available system in the country that requires all insurance carriers, auto recyclers, junk and salvage yards, and states to report vehicle title history information. NMVTIS data is also required in the state of California to comply with AB1215.

Reports typically include title “Brand” information that may uncover a previously-unknown “Salvage” or “Flood” vehicle. This information may not normally be found in a standard vehicle history report.

CheckThatVIN is available at https://checkthatvin.com.

“Customers shouldn’t have to be so wary when they buy a used car,” said William Pagan, Senior Vice President at CARCO.  “But, unfortunately, a lot of unscrupulous sellers will try to pawn off a flood-damaged car as perfectly fine.”

Rob Winthrop, business development director at CARCO, added that consumers should pay attention to cars labeled as “Insurer Total Loss.” “Often, a vehicle that was a loss due to flooding may be labeled as ‘Insurer Total Loss’ versus ‘Flood,’” he said.  “Running an inexpensive CheckThatVIN report prior to purchasing a used car offers valuable information and peace of mind.”

 

 

 

 

 

 

Sweeping immigration law changes are coming! Know your responsibility as an employer.

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All indications are that the new President’s key initiatives will include sweeping changes in immigration. According to immigration law, employers have certain responsibilities during the hiring and background screening processes. Federal law requires that every employer who “recruits, refers for a fee, or hires an individual for employment in the U.S. must complete Form I-9 Employment Eligibility Verification,” according to the Department of Homeland Security (DHS).

It’s time to review your I-9 program and ensure it is compliant. Here’s why.

  • Monetary penalties for knowingly hiring and employing undocumented workers can be up to $16,000 per violation.
  • Penalties for technical violations, including failing to produce a Form I-9, can be up to $1,100 per violation.
  • Criminal penalties can be up to 6 months in prison for engaging in a pattern or practice of hiring, recruiting or referring for a fee unauthorized aliens.

Immigration and Customs Enforcement’s (ICE) audits are serious. In 2015, Hartmann Studios was hit with the largest fine ever ordered$605,250 – for more than 800 I-9 paperwork violations. Most of the violations were due to repeated failure to sign section 2 of the I-9 form. Employers need to have an audit proof process to ensure forms are properly completed and retained.

As part of our Onboarding Solution, CARCO can facilitate an electronic Form I-9 process (using e-signature technology) AND complete the E-Verify process through an interface with the DHS. The results of this process are available to clients within seconds. The employee’s I-9, along with the supporting documents, are then stored in compliance with ICE requirements.

In addition to the mechanics of providing the documents, CARCO’s I-9 solution allows its clients to achieve a far higher level of compliance than would otherwise be possible by having e-mail reminders, reporting, and e-mail escalation notices if these tasks are not complete.

Now is a good time to review your I-9 process with a CARCO Specialist to ensure compliance. Contact us a 1-866-557-5984 or click here to receive more information.

Don’t forget that the new Form I-9 must be used starting January 21, 2017.

 

 

Do You Know Who You Are Hiring? CARCO Can Help!

did you know blue square sticker isolated on white

25.3% of employee theft includes amounts stolen of $1M and up.
75% of employees have stolen from their employers at least once.
33% of all business bankruptcies are caused by employee theft.
2 years is the average time office fraud lasts before being detected.

(Source: Static Brain Survey) 

Do these numbers shock you? They should!

KNOW WHO YOU ARE HIRING!

At CARCO, our screening accuracy rate is the highest in the industry at 99.996%.

Contact CARCO at 1-866-557-5984 or click here to speak with a CARCO Specialist.

The Importance of Thoroughly Vetting Your Background Screening Provider: Man Wins $3.6M for FCRA Violation by a Background Screening Company

According to an article in The Gainesville Sun, a background screening company twice misidentified Richard Williams of Chiefland as Ricky Williams, a Delray Beach man convicted of aggravated battery on a pregnant woman in Broward County and arrested on charges of selling cocaine in Palm Beach County. The two men have the same birth date.

After receiving the report from the first company, Williams followed the proper procedure and filed a dispute. When he applied for a different job, this time at Winn-Dixie, the same background screening company processed his background check and made the same mistake!

To receive punitive damages, Williams’ attorney had to prove that the background screening company’s mistakes were done willfully. The attorney had to essentially prove that the company did not follow its own procedures for people with common names or set up an effective procedure for someone already misidentified once in its system. The attorney was able to prove that the process did not make use of available reports that show Social Security numbers or address histories. Publicly available records from the Department of Corrections showed that Ricky Williams was in jail in Broward County when Richard Williams applied for the job at Winn-Dixie.

The above issue is a prime example of why employers should fully vet the consumer reporting agency that provides background screening services for their company. Some of the largest companies are constantly embroiled in class action lawsuits for FCRA violations. A simple Google search shows pages and pages of disputes. The background screening company in this article alone has been involved in over 17,300 disputes from 2009 – 2013.

It is important to know that not all background screening companies have the same processes. It is especially important to work with a company that uses only official sources of data and confirms all information from online databases with the courts.

Here’s how to do background checks right:

  1. Never rely on 3rd party databases to complete criminal record checks.
  2. Never report the raw results of an inadequate database search.
  3. Take the extra steps that protect clients and their candidates by verifying through secondary documentation or sources all potentially adverse information contained in a background report. (At CARCO, we re-verify adverse information up to five times prior to dissemination.)

For more information on how to ensure your background screening program is done right, contact a CARCO Specialist at 1-866-557-5984 or click here.

To read The Gainesville Sun’s article in full, click here.