June

In Lewis v. Southwest Airlines, the plaintiff asserted classwide and "willful" violations of the Fair Credit Reporting Act's disclosure requirement and corresponding violations of California's fair credit reporting act.  The class action alleged that Defendant Southwest Airlines Co. ("Southwest") improperly procures background checks of employment applicants during its hiring process. Plaintiff Justin Lewis, a former Southwest employee, specifically alleges that Southwest procured a background check about him without doing the following: 

1. providing him with proper notice;
2. properly receiving his authorization
3. informing him of his statutory rights

 
The court reasoned that the district courts have considered whether extraneous information in an FCRA disclosure constitutes a willful violation, but have provided inconsistent and even conflicting answers.
 
In Branch v. GEICO, In August 2016, Branch accepted a job offer with Defendant GEICO, contingent upon the results of a background check. The background report included a felony conviction that Branch had not disclosed on her application. GEICO preliminarily graded Branch’s report as “Fail” because of the conviction and then contacted Branch by phone. During the call, Branch explained that the conviction was a misdemeanor, not a felony. While Branch averred that GEICO had rescinded the job offer over the phone, GEICO maintained that it had advised her that she would receive a pre-adverse action letter with a copy of the background check and a summary of her rights, including instructions on how to dispute the background report. GEICO sent Branch the letter the next day, and later sent an adverse action letter, indicating that GEICO would not hire her.

GEICO did not defeat a pre-adverse action claim on summary judgement but did beat the plaintiff's motion to certify a class action. The plaintiff alleged that GEICO took an adverse action when it assigned the plaintiff's background check a preliminary grade of "Fail" - based on GEICO's "Adjudication Process."

And finally, in Culberson v. Walt Disney, the Culbersons brought a class action lawsuit against Disney under the Fair Credit Reporting Act (“FCRA”).  The suit alleges that Disney violated the FCRA by obtaining a background report without providing a proper disclosure and by taking adverse action without following a proper adverse action process
 
The court relied on the opinion in Lewis v. Southwest, holding that Disney did not act "objectively unreasonable." The law is dynamic and employers should continue to monitor case law and regularly developments.

The Wisconsin Fair Employment Act prohibits employers from taking adverse employment action against an applicant or employee because of the individual's conviction record unless the conviction is "substantially related" to the position. Wisconsin law permits certain offenders who commit crimes before they reach the age of 25 to have their convictions expunged.

In Staten v. Holton Manor (January 30, 2018), an applicant applied for a job as a certified nursing assistant at a skilled nursing facility. She disclosed on her application that she had been convicted multiple times, but that one of the convictions had been expunged. When she was not hired, the individual filed a charge of discrimination alleging the employer had violated the Wisconsin Fair Employment Act.
 
The Wisconsin Labor and Industry Review Commission concluded that the employer could not rely on the expunged conviction when arguing that the individual's conviction record was substantially related to the job.

A public filing by the North American Electric Reliability Corporation (NERC) on Feb. 28 reported that an unidentified electric utility agreed to pay a $2.7 million penalty to resolve violations of the Critical Infrastructure Protection (CIP) reliability standards related to the exposure of the sensitive data.

The violations of the case stemmed from improper data handling practices by the utility and its vendor, leading to the exposure of sensitive utility data on a public server. According to the Notice of Penalty, a third-party vendor improperly copied sensitive data from the utility 's network to its own network environment.