Shocking but true! Dealers should review their processes for compliance with Fair Credit Reporting Act in their hiring practices. Virtually all employers run background checks on candidates that they want to hire, dealers included. I have encountered unfeigned surprise and genuine confusion when explaining this compliance to management. In our industry, FCRA compliance points to sales and F & I—not the hiring process. We spend significant time, energy, and resources ensuring compliance in this arena—as we should. We should also not overlook unintended exposures created by innocent ignorance. “I didn’t know” or “I wasn’t aware” has never been an effective defense for non-compliance in any court room. Everyone’s favorite craft store, Michael’s discovered just what a pain it can be if the correct steps are not followed to insure compliance in the hiring process—interestingly, the latest (January 2017) FCRA claim against them wasn’t the first.
The claim was noted in an article by SHRM, “Top 10 Employment Cases of 2017 Reviewed”. This most recent litigation was truly a nuisance claim and was dismissed because there was no injury found. Apparently, a group of individuals filed a claim alleging that the FCRA was violated because they did not receive a required notice, presumably notice of intent and authorization to obtain a consumer report—the dreaded background check. All the individuals in the claim were hired—yet they filed a suit! What the heck you say? That’s what I said too! Further investigation shows that Michael’s did give notice but that notice was not in a stand-alone document. It was in the online application, which is not sufficient and that error gave someone ammunition to be a pain in the you know what. Sometimes people are just looking for a deep pocket to dig into and that appears to be what happened here. To me, the fact that the claim was dismissed due to no injury to the claimants makes no difference. The fact is, Michael’s neglect to follow the very clear steps for running background checks caused them to have to spend very real money to defend a claim that went all the way to the courtroom—to be dismissed. Personally, I think it’s kind of ridiculous.
Dealers may want to take the time to make sure they are compliant. Ensuring that notice is given, authorization obtained, and confirming the 2-step adverse action process is followed can significantly lower a dealer’s exposure to ridiculous and unnecessary nuisance claims—ask Michael’s.