On July 23, 2012, Plaintiff, Chiquita M. Warren filed a punitive class action against Defendant, Green Mountain Coffee Roasters, Inc., alleging the company used unauthorized consumer reports to reject otherwise qualified applicants, in violation of the Fair Credit Reporting Act (“FCRA”).  Warren v. Green Mountain Coffee Roasters, Inc., Case No. 212-CV-404, E.D. Va., Norfolk Division, July 23, 2012.pdf

The FCRA regulates the conduct of employers who wish to obtain a consumer report about employees, or prospective employees, stating: “a person may not procure a consumer report, or cause a consumer report to be procured, for employment purposes with respect to any consumer unless…” 

  • a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured;
  • in a document that consists solely of the disclosure that a consumer report may be obtained for employment purposes; and
  • the consumer has authorized in writing the procurement of the report by that person.

Prior to taking any adverse action based in whole or in part on the consumer report, employers must provide a copy of the report and a summary of individual rights, allowing sufficient time for the individual to review the consumer report, correct any inaccuracies or omissions and provide notice of the inaccuracies or omissions to the employer. 

In this case, the Plaintiff alleged that the employer failed to provide a clear and conspicuous written disclosure and improperly rejected applicants without providing a copy of the report and a current and updated summary of rights. The Plaintiff argued that this prevented applicants from being able to address inaccuracies or omissions before an adverse action was taken and violated the “purpose” of the FCRA.

We have previously reported on the mounting concern over the use of criminal records and credit reports to screen potential employees and the recent guidance provided by the Equal Employment Opportunity Commission (EEOC) on the use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964, as amended.  Although only at the infancy of the case, the current Complaint continues to highlight the vulnerability employers face when failing to comply with strict procedural requirements pertaining to background checks, as set forth by federal law.