Whole Foods Background Check Policy May Get “Canned” by Class Action

A proposed class action lawsuit accuses Whole Foods Market Group Inc. of violating the Fair Credit Reporting Act with its employee background check notification methods, ruling the suit alleged Whole Foods’ liability release was included in a disclosure documentation. A Florida federal judged recently refused to dismiss the proposed class action.

The plaintiff claims the supermarket violates the FCRA with its practice of including a waiver and release of liability form along with a FRCA statute required document that notifies the job applicant a consumer report may be obtained for employment purposes. “Employers seeking to run background checks must disclose their intentions to their prospective or current employees in a document that consists solely of the disclosure under the FCRA statute,” according to the plaintiff.

Whole Foods sought to dismiss the suit, arguing the plaintiff’s exhibits show that the supermarket gives its workers two separate forms, one with the disclosure and another with the liability release.

The U.S. District judge did not dismiss the proposed class action lawsuit stating he was bound by the facts alleged in the complaint, which claimed the forms should be considered one document because they were read and signed at the same time. The lawsuit argues “the current process isn’t clear and conspicuous.”

“Based on the allegations, with all inferences drawn in favor of the plaintiff, if both the disclosure and the consent forms combined and read as one document with a waiver and release included simultaneously with the disclosure, the complaint states a claim of release,” U.S. District Judge Richard A. Lazzara wrote.

Furthermore, the plaintiff alleges “Whole Foods acted willfully under the FCRA because it knowingly or recklessly disregarded its statutory duty. The store was aware of the FCRA, but failed to comply with its requirements,” he said.

Again, the judge agreed with the plaintiff finding that “Whole Foods had access to legal advice and guidance from the U.S. Federal Trade Commission and knew that its actions were inconsistent with that advice.” The plaintiff worked for Whole Foods in its Tampa, FL, location, until he was terminated in June 2013. The plaintiff is seeking to represent a putative (reputed) nationwide class of Whole Foods’ employees, former employees or prospective employees who were the subject of a consumer report procured by Whole Foods in the last five years. The checks were allegedly performed by LexisNexis Group.

The GSN Solution

A minor mistake, a careless oversight or a small violation may not seem important, but when it comes to the background screening process these trivial errors have cost employers millions of dollars in fines, penalties, judgments, lawyer fees and lost time.

As a Consumer Reporting Agency (CRA), Global Safety Network (GSN) understands, follows and advises our clients on compliance and regulations while establishing a legally defensible process to ensure that even the small errors won’t cost you big bucks. Call GSN today to learn more about our Background Screening Solutions customized for your business and industry.

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