May

The Southern District of California has granted the United States ' motion to intervene in Dowell v. General Information Services, Inc. (GIS), to defend the constitutionality of 15 U.S.C. � 1681c, a provision of the FCRA. GIS contends that subsections (a)(2) and (a)(5) of the provision, which generally prohibit CRAs from disclosing public information regarding an individual 's non-conviction criminal history more than seven years old, is unconstitutional under Sorrell v. IMS Health Inc., 131 S. Ct. 2653. The case stems from a purported class action complaint filed by three plaintiffs, alleging that GIS provided non-conviction data over seven years old in a report to a private company that regulates access and provides employee registration for military base personnel. For background screening providers, if GIS is successful in its argument, the restriction on reporting older, non-conviction criminal history would cease to exist under federal law. Where the EEOC has issued guidance stating that an arrest alone is not grounds for denying an employment opportunity, even the EEOC recognizes that an employer may make a decision based on the underlying conduct if the conduct makes the individual unfit for the position in question.

"The San Francisco 's Board of Supervisors is ready to ""ban the box,"" the widely used criminal history check box on employment applications.

This would make San Francisco the ninth jurisdiction to enact the legislation. In addition, the new San Francisco legislation imposes a host of additional new restrictions on the use of criminal history for employment purposes. These restrictions supplement those already imposed by the federal FCRA and arguably make San Francisco the toughest jurisdiction in the U.S. for employers to use criminal history.

To comply, San Francisco employers with more than 20 employees should take the following steps: Review their employment application to remove questions about criminal history, Revise their hiring procedures to delay inquiry about criminal history until after the first live interview, Develop a criminal history questionnaire, Establish a procedure for documenting evidence of rehabilitation and mitigating factors received from applicants and for considering that information before making an adverse employment decision, Establish a minimum seven-day waiting period before sending a final adverse action notice, Revise job advertisements to include required language, Post the required poster after the OLSE publishes it, and Retain all documents demonstrating compliance with the Ordinance for at least three years."

"Whole Foods Market California Inc. was slapped with a proposed nationwide class action accusing the company of using a legally invalid form to get job applicants to consent to background checks as part of the hiring process. The complaint claims that the form Whole Foods uses as part of its online application to get permission from applicants to carry out consumer reports, including criminal background checks, credit checks and other similar reports, is facially invalid under the FCRA. The complaint alleges that Whole Food's online authorization form contains language releasing those who obtained the consumer reports from all liability, in violation of the FCRA 's requirement that the authorizations be pristine documents that contain nothing other than the required disclosures and the requested authorization. ""It's not only illegal but also has a lot of negative ramifications when companies don't properly comply with the law,"" said Craig J. Ackermann of Ackermann & Tilajef PC, who represents the plaintiff. The suit alleges that the use of the invalid form constitutes a wilful violation of FCRA's requirement that the authorization forms be set forth in a document that consists solely of the disclosure."