In June, a former employee filed a class action complaint against Kohl’s Department Stores alleging violations of the Fair Credit Reporting Act (FCRA) and California’s Investigative Consumer Reporting Agencies Act (ICRAA) and Consumer Credit Reporting Agencies Act (CCRAA).  Kohl’s filed a motion to dismiss, arguing that the claims were time-barred under the FCRA’s two-year statute of limitations.

The plaintiff claims that she did not discover the violation until her counsel requested a copy of her personnel file which contained the allegedly defective forms.  She did not receive a copy of the forms when she originally applied for employment, but instead was asked to complete them and return them to Kohl’s.  According to the plaintiff, her claims are timely because she filed suit within two years of receiving the personnel file and could not have discovered the FCRA violation any sooner.  While Kohl’s argues that any alleged violation occurred at the time the plaintiff signed the disclosure, the plaintiff argues she could not have discovered the violation until receipt of her personnel file.

The class action complaint alleges that before her employment began, Kohl’s performed background and credit checks that violated the FCRA.  Specifically, the plaintiff alleges that the employment application used by Kohl’s includes an authorization form that is embedded with extraneous information, including but not limited to a liability release.  In addition, the plaintiff claims that Kohl’s requires applicants to execute a second authorization form that does not include a release in an attempted “end-run” around the FCRA’s stand alone disclosure requirement.   

The complaint includes claims against Kohl’s for violation of the ICRAA and CCRAA based on the retailer’s failure to make available the source of the plaintiff’s  credit report and by not presenting the authorization to obtain the report in a clearly separate document.  Kohl’s argued that the ICRAA claim was unconstitutionally vague; however, recently the California Appeals Court overturned a decision ruling that the ICRAA was unconstitutionally vague, as we previously reported here. 

Kohl’s’ reply brief in support of its motion to dismiss is due September 4.  The case is Coleman v. Kohl’s Department Stores, Inc., Civil Action No. 3:15-cv-02588, and is pending in the U.S. District Court for the Northern District of California.