Responsible employers screen applicants and employees to protect the safety and welfare of their workforce and the community and to comply with state and federal law.  Working with background screening companies, employers are able to identify and address possible risks.  But this responsible practice may lay the groundwork for a class action lawsuit if an employer does not mind the details.

Background checks are covered by the Fair Credit Reporting Act (FCRA).  Under the FCRA, an employer seeking to obtain a background check on an applicant or employee must follow certain requirements that are unique to employment:  written disclosure; written consent; and, where applicable, pre-adverse action notices.  Because these requirements may apply to each screening, any failure in compliance is an attractive target for class action attorneys because the violations may be numerous and similar. The best illustration of this risk is in the recent spate of class action cases concerning the written disclosure requirement.

The FCRA requires that, before an employer can obtain a report, it must provide the consumer with a "clear and conspicuous disclosure...in writing" that a consumer report may be obtained for employment purposes.  The disclosure must be provided to the consumer "in a document that consists solely of the disclosure."  This last provision is the one that trips many employers up - usually because they are trying to combine other relevant notices and helpful information with the required disclosure.  One word of advice:  Don't.