“I release
Publix Super Markets, Inc., its employees, its authorized agents and
representatives from any liability in connection with any decisions made
concerning my employment based on information reported.” The inclusion of this
language in their background check disclosure form is costing Publix millions
of dollars. Facing a potential 90,000+ class members and an indisputable
violation of the FCRA, Publix has decided to settle for $6.8 million.
Long story short, your disclosure form cannot consist of
anything more than stating your intent to procure a consumer report for
employment purposes per the FCRA. The inclusion of release
language, i.e. “I hereby release company
from liability”, will open your business up to a potential class action suit
much like this one. Publix isn’t the only company to have made this mistake recently.
This class action lawsuit follows closely on the heels of many similar cases.
Whole Foods, ClosetMaid, O’ Reilly’s Automotive Stores Inc., CEC Entertainment
Inc., and ESA Management are just a few of the companies who failed to provide
a standalone disclosure and/or included release language.
While the disclosure and authorization can be put together,
employers may want to separate the two. As it stands, there are no rules
against release language on your authorization form. Before implementing any
changes, however, it would be prudent to discuss them with your legal counsel.
Also, it would be wise for all employers
to review their current disclosure and authorization forms with their legal
counsel to make sure you are not making a similar mistake.
You can find the Fair Credit Reporting Act in its entirety here.
