Most human resource professionals have an incredibly busy work week. Piles of resumes on the desk, hiring deadlines to meet and more. When a background check comes back with a criminal record, many human resources (HR) leaders simply reject the candidate and move on to the next candidates.
The rejection of an applicant based on an obvious "no hire" criminal record rule is one of the most common lawsuits hitting employers in the United States today. Plaintiffs lawyers are hitting corporations with lawsuits, alleging failure to follow adverse action protocols at an astonishing rate.
Millions upon millions of dollars are being lost because HR departments are simply and quickly rejecting applicants with criminal records without providing them with the chance and time to dispute the records, if necessary.
Almost every background check company has encountered errors in gathering criminal case file information from courthouses. It's an incredibly troublesome process.
Often times, hundreds of records have to be searched to ensure that the "Jane Doe" matches the same applicant who has the criminal record. Even the courts themselves make mistakes on file retrievals and frequently give inaccurate information to a background check court runner or retriever. What's important is to quickly correct these mistakes to ensure that this is an anomaly and not a systemic and continuous error. Any background check company that claims that mistakes do not happen is clearly not being honest.
With "adverse action" procedures, applicants are protected from these errors and allowed time to dispute the information. Ensure that you understand adverse action notice protocols by downloading our latest white paper, which will provide you with:
- The difference between pre-adverse and adverse action notice
- FCRA notice and disclosure requirements
- State-specific pre-adverse action notifications
- Recent FCRA lawsuits
- Specific timing requirements
Proceed with Caution - Don't Make an Impulsive, Immediate Decision
One of the most recent class action lawsuits is Culberson v. The Walt Disney Company, alleging several issues including the failure to comply with adverse action guidelines. In this lawsuit, an alleged mistake in a background check was made, and the plaintiff claims that the Walt Disney Company failed to follow proper adverse action protocols.
The lawsuit states that approximately 42,000 applicants were certified by the judge, in this case, increasing potential liability by perhaps millions of dollars.
The claim against Disney is that they knowingly violated the Fair Credit Reporting Act (FCRA) and failed to provide job applicants and employees with pre-adverse and adverse action notices, as well as failing to provide job applicants with a copy of their consumer report (background check report), pursuant to sections 604(b)(3) and 615.
In the Disney case, Mr. Culberson was hired by Disney and a background check was conducted by Disney's background check company. The initial report showed that Mr. Culberson had a 1998 conviction, although it had been expunged. Mr. Culberson alleges that Disney never provided him with the appropriate adverse action notices or a copy of his background check report. Upon contacting the background check company, Mr. Culberson determined that the report submitted to Disney contained the expunged conviction. The background check company subsequently issued a new report without the expunged record.
In addition to FCRA violations, Disney was charged with the violation of California Labor Code §432.7(a) for considering a record of arrest that did not lead to a conviction. California Superior Court Judge Ann I. Jones granted the plaintiffs’ motion for class certification in two separate classes. Regarding adverse action, she ruled the “Pre-Adverse Action Notice Class” will include all such persons who were subject to a “no hire” recommendation made on the basis of the contents of that report.
What You Can Do
Employers need to take note of this. When you obtain a criminal record, bad reference or other information that can potentially result in an adverse action decision, stop. Think through the laws surrounding this particular part of the hiring process and proceed with caution.
Contact us if you're not sure what your next steps should be or if you'd like to learn about the things you can do to prevent a lawsuit against your organization.