Is Compliance a Top Concern For Your Company? If Not, It Can Cost You...

June 2, 2011

Is Compliance A Top Concern For Your Company? If Not, It Can Cost You...

Truck drivers who sought employment with Vitran Express, Inc. between 2004 and 2009 have won a $2.6 million class action lawsuit settlement over allegations the freight company secretly obtained illegal criminal background checks on them.

According to www.legafi.com, the class action lawsuit alleged Vitran failed to provide job applicants with a clear and conspicuous disclosure (in accordance with the FCRA) that the company would obtain a criminal background report as a precondition of employment. Once the reports were obtained, the Vitran class action alleges the company failed to provide notices that employment would be denied based upon the content of the reports.

The principal plaintiff in this case was misidentified as having 27 felony convictions and was denied employment to Vitran without ever being notified of the details in his criminal report. Vitran allegedly obtained the criminal report on the man without his consent after he applied for employment in 2008. A class action lawsuit was then filed by the plaintiff for all the applicants whose criminal background records were used as a condition for employment.

According to the lawsuit, Vitran violated the FCRA by:

Failing to provide written disclosure on applicants that they would obtain criminal background reports
Failing to obtain the applicants' written authorization to obtain such reports
Failing to provide copies of such reports to the applicants involved
Failing to provide a summary of the applicants' FCRA rights to review and correct such reports before the company took any adverse employment action based on the contents of the reports

What you can do:

You must make sure that your background checks are in accordance with the FCRA. Before acquiring a criminal background report, applicants must be notified and must provide the employer with authorization.

By using Data Facts as your background screening provider, we help to ensure compliance by continually updating you with new information on ever changing rules and regulations. Please see below for our latest article on compliance by our compliance manager, Johnna Leeds.

Compliance Corner - Using Credit Reports? What Should a Credit Report Policy Look Like?

This is not intended to provide legal advice. You should consult your own company's Human Resource and Legal departments and/or obtain legal advice.

Did you know that some states have restrictions in addition to what is in the Fair Credit Reporting Act? For those of you in the following states, there are no restrictions beyond the FCRA as of now:

AL, AK,AZ, AR, DE, ID, IN, KY, LA, MS, MO, MT, NE, NV, NM, NC, ND, SC, SD, TN, TX, WV, WY

Below are a few of the restrictions beyond the FCRA in other states:

Florida - Use of a conviction for crime or for a certain crime - A person may not be disqualified from employment by the state, any of its agencies or political subdivisions, nor shall a person whose civil rights have been restored be disqualified to practice, pursue, or engage in any occupation, trade, vocation, profession, or business for which a license, permit, or certificate is required to be issued by the state because of a prior conviction of a crime. See Exceptions.

Georgia - Use of First Offender record - Employer may not use a "first offender" conviction, except for employers such as: banks, schools, day care, nursing homes and those serving the developmentally disabled

Illinois - Use of sealed, expunged or erased records - Employment application must state that the applicant need not disclose any expunged arrest or conviction.

Use of Credit Report - An employer may not inquire about or obtain a credit report unless the employer is excluded or there is an exemption for a specific position. The use of credit header information is specifically authorized. There are excluded employers and excluded positions - see the next two sections.

Ohio - Use of sealed, expunged or erased records - Applicant may not be questioned about sealed convictions

Information on report must be relevant to job- Any conviction used to make a hiring decision must bear a direct and substantial relationship to the position sought.

For a complete list of states, click here.

If you have any questions, feel free to call me, Johnna Leeds at 256-325-6779.

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Is Compliance A Top Concern For Your Company?

Compliance Corner

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Data Facts would like to thank our associates, vendors and loyal customers for our success and role in becoming a Top 5 Finalist for the Memphis Business Journal's Small Business of The Year Award. It is because of you that we have enjoyed so much success over the past two decades. As we grow and add more products, services and new technology, we strive to continue to provide the outstanding customer service you've come to expect from us.

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