Pennsylvania Background Check Laws

Ramos v. Genesis Healthcare, LLC (2015)

Does the intention to take adverse action against an applicant equate to actually taking adverse action against the applicant? No, the Court held that “a preliminary decision to take adverse action does not trigger the FCRA’s notice obligation.” The Court further notes that “adverse action does not occur until the decision is communicated or takes effect.”

The Court found in favor of Genesis Healthcare. Ramos had applied for a position with Gensis Healthcare and received a conditional offer of employment pending a background screening. The background screening revealed criminal history that did not comply with Genesis’ hiring standards. The adverse action process was followed, and Ramos was allowed to dispute inaccurate information and was eligible for hire pending the outcome of the reinvestigation. Genesis presented undisputed evidence that they took into consideration Ramos’ information about her criminal record. Genesis ultimately made the final decision after Ramos had the opportunity to explain any negative findings and dispute any inaccuracies.

This is a good example of how Courts will view an employer’s decision favorably if their procedures strictly adhere to the FCRA. Genesis Healthcare had procedures in place for taking proper adverse action, and when reviewed by the Court, the Court agreed. The Court noted that an employer “is entitled to make an internal determination of “intent” to revoke the employment offer so long as it affords [the applicant] a real opportunity to challenge this internal determination. All of the evidence confirms [the applicant] took advantage of the opportunity and [the employer] evaluated her challenge, discussed it internally and only then reached a final decision. Accordingly, the pre-adverse action notice complied with the FCRA.”

Lopez v. Edge Information Management

Plaintiff alleges that Edge Information Management does not comply with the FCRA’s requirement of following reasonable procedures to ensure maximum possible accuracy. Lopez was denied employment at AutoZone due to inaccuracies on his background screening report prepared by Edge. Edge disclaimed all the information was not accurate, but took no steps to verify other identifiers beyond name.

Case Pending. Lopes is the lead plaintiff for this class action lawsuit.

Employers must follow proper adverse action procedures, and CRAs must follow strict procedures to ensure maximum possible accuracy.

Abel v. Big Lots Stores, Inc

Plaintiff claims that the Big Lots Stores consent form that he signed for the procurement of a background screening report violated the FCRA because it did not consist solely of the disclosure and did not properly inform him a background screening would be performed. This form also contained the extraneous statment “that all employment decisions are based on legitimate non-discriminatory reasons.”

Certified Class Action. Abel is the lead plaintiff in this class action lawsuit.

Employers must ensure that their disclosure form consists solely of the disclosure as required by the FCRA. No extraneous information such as language amounting to a liability waiver is allowed to be present on the disclosure form

Noye v. Johnson & Johnson, Kelly Services

Plaintiff claims that Johnson & Johnson did not hire him because of inaccuracies within his background screening report. Summary offenses were inaccurately labeled misdemeanors. Furthermore, Johnson & Johnson did not obtain the plaintiff’s consent before using the background screening in their employment decision.

Certified Class Action. Noye is the lead plaintiff in this class action lawsuit. Johnson & Johnson moved to compel arbitration, but the Court denied this motion.

Employers using Staffing agencies must still ensure that they comply with the disclosure/authorization and adverse action procedures as required by the FCRA. Although the Staffing agency may have their own procedures complying with the FCRA, this does not preclude the employer from adhering to this standard themselves.

Halbert v. Penn National Gaming

Plaintiff claims that Penn National Gaming violates consumer privacy laws by failing to make proper disclosures when it pulls the credit reports of employees and applicants. Plaintiff claims Penn National Gaming violated the FCRA by pulling credit reports of employees and prospective employees without first providing a clear notice in writing so the individuals can give consent and remedy any issues they may have with their report.

Dismissed.

Employers must ensure they follow strict procedures complying with the FCRA’s requirements for disclosure and authorization as well as adverse action.

Long v. Southeastern Pennsylvania Transportation Authority (SEPTA)

Plaintiffs claim that they completed forms disclosing prior drug-related convictions and authorizing SEPTA to conduct background checks, but that the forms did not comply with the FCRA’s stand-alone disclosure requirement. Plaintiffs allege that the forms contained extraneous language, including language inquiring about their educational history, employment history, probation or parole status, and job suitability.

Dismissed. Court held that Plaintiffs did not suffer any concrete injury in fact.

Employers must ensure they follow strict procedures complying with the FCRA’s requirements for disclosure and authorization.

Wright v. Lincoln Property Company

When does the adverse action process need to take place? Employer sent out adverse action while the report was still in progress, and did not send out adverse action once the final report was completed. Plaintiff brought suit against the employer for not following correct adverse action procedures.

Case Pending.

The adverse action process should be initiated once the employer has received the completed screening report. If the adverse action process was initiated while the report was still in a progress, a SECOND adverse action process must be followed upon completion of the report in its entirety (for example, this would mean at least four notification letters sent).