October

"The EEOC's April 25, 2012 updated enforcement guidance on the use of arrest and conviction records by employers has generated renewed and substantial interest in the controversial subject of criminal background checks in the context of Title VII of the Civil Rights Act of 1964.

Although it is important for employers to review the EEOC's updated guidance, employers also need to be mindful of the increasing number of related state laws. The latest of these laws is Indiana House Bill 1033, which, starting July 1, 2012, will, in part: (1) prohibit certain pre-employment inquiries, (2) restrict the types of criminal history information that employers and background report providers (known as ""consumer reporting agencies"" or CRAs) can obtain from Indiana state court clerks, and (3) restrict the types of criminal history information that CRAs can report to employers in background reports. The apparent purpose of the new law is to limit the universe of Indiana criminal record information available to employers among other entities."

In Long v. Southeastern Pennsylvania Transportation, the named plaintiffs applied for positions as bus operators with the Southeastern Pennsylvania Transportation Authority (SEPTA). SEPTA allegedly extended each of the plaintiffs a conditional offer of employment, which was contingent upon a background check.

In each instance, the plaintiffs disclosed the existence of a drug conviction to SEPTA. SEPTA then obtained consumer reports on the plaintiffs, which demonstrated that the plaintiffs did in fact have one or more felony drug convictions. The plaintiffs contend that their conditional offers of employment were revoked as a result of their criminal history. The plaintiffs filed their class action complaint against SEPTA in April in the U.S. District Court for the Eastern District of Pennsylvania.

"After the Supreme Court vacated and remanded the Ninth Circuit 's decision in Spokeo, Inc. v. Robins, the parties again appeared before the lower court, arguing over whether a purely technical violation of the FCRA is sufficient to satisfy the concreteness requirement for Article III standing.

The Supreme Court issued its decision in the Spokeo matter, holding that while the Ninth Circuit had considered whether Robins ' harm was particularized, the lower court had failed to consider whether the ""invasion of a legally protected interest"" was ""concrete."" The high court instructed the Ninth Circuit to consider ""whether the particular procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness requirement."" In its supplemental brief, Spokeo argued that ""[n]either the statutory violations alleged here nor the factual allegations of the complaint demonstrate that Robins suffered the required concrete harm or faced a 'certainly impending ' risk of harm."""