On March 20, Naples Hotel Group LLC removed a putative Fair Credit Reporting Act class action to the U.S. District Court for the Middle District of Florida. The complaint, originally filed February 13 in the Ninth Judicial Circuit Court in Orange County, Florida, alleges that Naples improperly obtained and used consumer reports about prospective and existing employees – through an outside consumer reporting agency – without complying with the FCRA’s disclosure and authorization requirements. The lead plaintiffs, Shawana Sanders and Kenyatta Williams, are former employees of Naples.
The putative class is defined as all Naples Hotel Group employees and job applicants in the United States who were the subject of a consumer report procured by the company within five years of the complaint’s filing.
According to the plaintiffs, the authorization forms used to obtain their consumer reports during the initial application process contained “extraneous provisions” that distracted the applicants from understanding the import of the disclosure. According to the plaintiffs, Naples knew it was required by law to provide a stand-alone form, separate from its employment application, before obtaining and using consumer reports. They allege that Naples further violated the FCRA when it took adverse action against them.
“Without clear notice that a consumer report is going to be procured, applicants and employees are deprived of the opportunity to make informed decisions or otherwise assert protected rights,” according to the complaint.
These types of FCRA disclosure form claims are incredibly popular with the plaintiffs’ bar, and judicial decisions vary widely based on circuit and fact pattern. Last year in Syed v. M-I, LLC, the Ninth Circuit Court of Appeals issued a significant decision on the discrete issue of FCRA willfulness as applied to disclosure form claims, ultimately concluding that the prospective employer willfully violated the FCRA by including a liability waiver in its background check disclosure form. Troutman Sanders previously reported on the Syed decision.
Troutman Sanders will continue to monitor related legislative developments concerning employment background screening and employee hiring.