Swift Transportation Company, background checks and the FCRA

There’s already been quite a bit of media attention around the fact that Swift Transportation Company (Swift) agreed to a $4.4 million settlement to settle a class action lawsuit which alleged that the company failed to inform job applicants about their rights under the Fair Credit Reporting Act (FCRA) as well as their alleged failure to follow the FCRA in other respects.  This included job applicants right to dispute inaccurate or incomplete information on their background check reports as well as seeking their consent to conduct a background check.   See Ellis v. Swift Transportation Co. of Arizona filed in federal court in Virginia (3:13-cv-00473).  If you haven’t heard about this settlement or know the facts, read on.

Quick facts of the case as alleged in the complaint:

• Plaintiffs applied for commercial truck driver positions with Swift.
• Swift sought background checks from HireRight Solutions, Inc.
• Swift did not provide Disclsoure and Authorization notices and did not receive the required consent for the checks.
• Swift did not provide the pre-adverse action notices to job applicants.
• Both claims under the FCRA are under sections 604(b)(2) and 604(b)(3) of the FCRA — Disclosure & Authorization and Pre-Adverse Action.
• The class covered consumers in Virginia, North Carolina and South Carolina and the time period spanned from 2008 to 2012, covering approximately 161,000 class members.
• Plaintiffs were represented by Len Bennett and the Consumer Litigation Associates as well as another law firm.
• Lead plaintiff Ellis will receive $5,000 for serving as a class representative, while seven other named plaintiffs will received $1,000 each for same, in addition to any other compensation they are entitled to as class members.

This is not the first lawsuit with these type of allegations.  Other alleged FCRA violations cited in private lawsuits include: (1) failure to provide consumer files (FCRA §§ 609(a)(1) and (a)(2)); (2) accuracy of the consumer report (FCRA § 607(b); and, (3) failure to provide required notices to users (FCRA § 609).  For companies that conduct background checks and consider themselves “consumer reporting agencies” under the FCRA, it’s always a good time to speak with the users of your reports regarding their FCRA obligations.