By Pamela Q. Devata, Esther Slater McDonald, John Drury, and Connor M. Bateman

Seyfarth Synopsis: As part of an evolving trend of narrowly interpreting the FCRA’s “standalone” disclosure and “clear and conspicuous” disclosure requirements, the Ninth Circuit has held that users of consumer reports may violate the FCRA and ICRAA by including

By Pamela Q. Devata and Jennifer L. Mora

Seyfarth Synopsis: In the last three years, employers have seen a sharp increase in the number of employment class actions under the Fair Credit Reporting Act (FCRA). Most of the reported cases involve challenges to the employer’s procedures before ordering a background report. More recently, however,

By Esther Slater McDonald

Seyfarth Synopsis: The New York Court of Appeals’ ruling on questions regarding the use of criminal convictions in hiring will impact employers and may impact the background screening industry, the temporary staffing industry, and other businesses requiring its affiliates or contractors to adhere to certain criminal history guidelines.

In Griffin

In the second periodic installment of the Employment Law Lookout Blog Team’s analysis of employment law (and related) case being heard by the United States Supreme Court this term, read on for our take on Spokeo Inv. v. Robins.

Plaintiffs Without Injuries?  SCOTUS To Hear Arguments Whether
Plaintiffs Need to Show Concrete Harm To Establish

By Pamela Q. Devata, Robert T. Szyba, and Ephraim J. Pierre

SCOTUSFollowing the U.S. Supreme Court’s grant of certiorari on April 27, 2015 in Spokeo, Inc. v. Robins, No. 13-1339 (which we reported here), the Petitioner has weighed in with their brief.

As you may recall, the question before the Court

By Pamela Quigley Devata, Paul Kehoe, and Craig B. Simonsen

The Federal Trade Commission (FTC) and the Equal Employment Opportunity Commission (EEOC) have just announced two short guides on employment background checks: Background Checks: What Employers Need to Know and Background Checks: What Job Applicants and Employees Should Know.  The documents were

 By Pamela Devata and Paul Kehoe

On January 13, 2014, the Southern District of California granted the United States’ motion to intervene in Dowell v. General Information Services, Inc. (“GIS”), No. 13-2581, to defend the constitutionality of 15 U.S.C. § 1681c, a provision of the Fair Credit Reporting Act. GIS contends that subsections (a)(2) and (a)(5) of the provision, which generally prohibit consumer reporting agencies (“CRAs”) from disclosing public information regarding an individual’s non-conviction criminal history more than seven years old, is unconstitutional under Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011).

The case stems from a purported class action complaint filed by three plaintiffs, alleging that GIS provided non-conviction data over seven years old in a report to a private company that regulates access and provides employee registration for military base personnel. For one plaintiff, who applied at a California military base in 2012, the report disclosed three drug counts pre-2003, including information that two had been dismissed. For a second plaintiff who applied for a position at a San Diego naval base, the report identified charges in three separate criminal cases, including felonies, along with dismissal information. Finally, the third plaintiff’s report revealed multiple charges for felonies and accurately disclosed that all had been dismissed. 

In Sorrell, the Court struck down a Vermont statute that prohibited pharmacies and data brokers from selling prescriber data if the data would be used for marketing purposes. The Court determined that because the statute permitted pharmacies and data brokers to sell the information to insurance companies, university researchers, journalists and others, that the statute imposed speaker- and content-based restrictions subject to heightened scrutiny, as is required under the Constitution. The state, therefore, failed to establish that the statute directly advanced a substantial government interest and that the measure was drawn to achieve that interest, and that statute was struck down as unconstitutional. 

In Dowell, GIS maintains that if the government could achieve its interests without restricting speech or restricting less speech, it must do so under Thompson v. Western Sates Med. Ctr., 535 U.S. 357, 371 (2002) (holding that if the Government can achieve its interests in a manner that does not restrict commercial speech, or that restricts less speech, the Government must do so). GIS argues in its motion to dismiss that the government’s purported interests — relevancy, privacy and accuracy —  do not support FCRA’s blanket prohibition on disclosure. According to GIS, less restrictive alternatives, including a restriction on employer use of the older, non-conviction data, would equally advance the government’s interest.   
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