Overview
Employers frequently rely on background checks when making employment decisions. The type of background check used by an employer often depends on the nature of the industry, the needs of the business and the laws in the state which the employee or applicant reside. Having an effective background check procedure can be invaluable for the company to make well-informed decisions necessary to protect the business and its customers. Conducting background checks requires employers to navigate a multitude of various legal landmines.
Numerous states have developed laws limiting an employer’s ability to access and use background information, including criminal records. A recent deluge of class actions have been filed under the Fair Credit Reporting Act (FCRA) claiming employers have not provided proper notice and authorization prior to conducting background checks. Even the EEOC has issued guidance requiring employers to conduct an individualized assessment prior to acting on an applicant’s or employee’s criminal record.
What Sets Us Apart
Constangy’s Background Check & FCRA Litigation group includes attorneys from all over the country who work together to provide employers comprehensive guidance on creating effective background check procedures that optimize a company’s effectiveness and minimizes its legal risks. We have worked with nationwide clients to provide advice on developing written policies for conducting background checks that are in compliance with all state and local laws, created internal procedures for companies to use the information identified during background and social media checks when making employment decisions, and assisted companies in developing a process for ensuring compliance with the FCRA’s notice, authorization and adverse action requirements. Our team has also handled numerous nationwide class action lawsuits under the FCRA, and has the subject-matter knowledge necessary to minimize liability. The breadth of our knowledge of the FCRA and the many local and state laws, and our understanding of a client’s needs makes our group especially adept at partnering with clients to meet their business objectives and protect their companies from legal exposure.
What We Do
Our Background Check & FCRA Litigation group works hand in hand with our clients to provide comprehensive background check policies and procedures based on the client’s needs and operations, and defends EEOC charges and lawsuits relating to background check issues including FCRA class actions. Our practice includes:
- Defending class and individual lawsuits brought under the FCRA and state background check laws
- Creating policies and procedures on the use of background check information in the hiring process
- Developing guidelines for client’s to use when making individualized assessments based on the results of a background check
- Providing guidance on making disqualification decisions based on the results of a background check
- Defending EEOC charges resulting from disqualification decisions made by an employer
- Representing clients in EEOC or state systemic investigations relating to practices involving credit checks or use of criminal background information
- Reviewing and revising state and federal FCRA forms and adverse action letters
- Updating clients on new state and local laws regarding ban the box, fair chance ordinances and prohibitions on seeking information from applicants
FCRA Litigation DefenseWe represent employers in class actions, individual lawsuits, and agency claims under the federal Fair Credit Reporting Act and related laws.
Policy Development & AuditsWe craft and review screening policies to ensure compliance with federal, state, and local requirements.
Ban-the-Box & Fair Chance CounselWe guide employers through evolving laws that govern the use of criminal history in making hiring decisions.
Regulatory Response SupportWe defend employers when their background check practices are challenged by the Equal Employment Opportunity Commission or state regulatory agencies.
Experience
Matters
- Obtained a dismissal with prejudice of a nationwide class action alleging violations of the FCRA
- Secured a dismissal with prejudice of a nationwide class action brought under the FCRA arguing that the client was exempt from the statute
- Resolved a FCRA class action involving more than 100,000 applicants for a total of $3,000, including fees and costs
- Prevailed on summary judgment in a nationwide class action under the FCRA
- Obtained favorable resolution in multiple FCRA class actions
- Developed a nationwide procedure and various policies relating to obtaining and using background check information in all 50 states
Attorneys
- Office Managing Partner - Whistleblower & Retaliation Practice Group Co-Chair
- Office Managing Partner
- Senior Counsel
- Partner
- Partner
- Office Managing Partner - Background Check & FCRA Litigation Practice Group Chair
- Partner
- Associate Attorney
- Partner
- Partner - AI Practice Group Co-Chair
- Partner
- Senior Counsel
- Associate Attorney
- Office Managing Partner
- Partner
