Don’t forget the pre-adverse action letter because it:
- 1. Is required by law
- 2. Provides the individual an opportunity to explain a case of wrong identity and
- 3. Affords the individual a chance to provide a record of an expunged record
According to a report from Top Class Action Lawsuits Disneyland must now face two certified Classes of job applicants who claim their background checks did not comply with the Fair Credit Reporting Act. California Superior Court Judge Ann I. Jones granted the plaintiffs’ motion for class certification on Thursday, giving plaintiffs Roger Culberson II and Edward Joseph III a substantial advantage in their Disney class action lawsuit. The two plaintiffs claim Disneyland has made hundreds of adverse employment decisions based on job applicants’ background check reports without giving those applicants the proper notifications required under the federal Fair Credit Reporting Act, or FCRA. Here is the case.Roger L. Culberson II, et al v. Walt Disney Parks and Resorts, et al
The first is that it is required by the Fair Credit Reporting Act. The FCRA, 15 U.S.C. §1681b(b)(3)(A), requires that before taking any adverse action based in whole or in part on a consumer report used for employment purposes, the person intending to take such adverse action shall provide to the consumer to whom the report relates: (a) a copy of the report, and (b) a description in writing of the rights of the consumer under the FCRA, 15 U.S.C. §1681g(c)(1). We recently wrote a blog post here explaining the importance of the Pre-Adverse Action Letter
The second is that in a country with over 250 million working adults it is quite possible that two individuals in the same jurisdiction can have the same name and the same date of birth. In a previous blog we discuss some of the reasons why a case of mistaken identity in criminal conviction searches can occur.
The third is that frequently an individual will have criminal conviction records in a jurisdiction that should have been expunged. But, for whatever reason, the criminal conviction records are still in the jurisdiction. The pre-adverse action letter affords the individual an opportunity to provide appropriate documentation to the hiring employer. Then the hiring employer must make a determination of how to use the expunged record information. As a consumer reporting agency, however, we must report what we find in the criminal court records. We will not make a unilateral decision to not report the convictions based on the existence of documentation that shows the criminal records should have been expunged.
Want to know why plaintiff attorneys like class-action lawsuits. A statement in the case explains why i.e. The proposed class consisted of “thousands of employees and prospective employees.” (Id. ¶ 49.) Culberson sought a statutory penalty of up to $1,000 per FCRA violation, punitive damages for willful FCRA violations, and costs and attorney’s fees. (Id. at 12.)
We have a blog post further explaining why class action lawsuits are so attractive to plaintiff attorneys.