Publix Settles Class Action Lawsuit over its Background Checks

The Fair Credit Reporting Act (FCRA) requires an employer to provide written notification to employees (or potential employees) before procuring a consumer report about them. The FCRA requires that this notice be “in a document that consists solely of the disclosure.”

Erin Knight and the class members alleged that the disclosure used by Publix contained release language that violated the FCRA. The release language in issue stated: “I release Publix Super Markets, Inc., its employees, its authorized agents and representatives from any liability in connection with any decisions made concerning my employment based on information reported.”

It is common for employers to include release language in FCRA authorization forms, but the Publix lawsuit highlights the importance of providing the required FCRA disclosure as a separate document. The FCRA disclosure should not include any other content. If you choose to include release language, it should be provided in a separate document.

Due to its one sentence release, Publix has agreed to pay $6.8 million to settle the class-action lawsuit. After attorney’s fees and costs are deducted, each of the approximately 90,000 class members will receive an estimated $48.

Employers must understand that violations of the FCRA can result in significant damages. In fact, the law allows an award of $100 – $1,000 for each willful violation of the FCRA. If you procure consumer reports as part of your background check for employees or job applicants, you should carefully review your FCRA disclosures to ensure compliance with the Act.

If you have questions regarding the FCRA disclosure or any other employment law matter, contact The Swenson Law Firm to schedule your initial consultation.

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