In Erin Knights v. Publix Super Market, Inc., Civil Action 3.14-cv-00720 (M.D. Tenn. 2014), the employers used background check disclosure forms that not only disclosed to applicants that a background check would be performed, but also asked the applicant to release the company from any liability in connection with the background check process.  The Fair Credit Reporting Act (FCRA), which is the federal law that governs pre-employment background checks, requires that employers provide a disclosure to applicants before conducting a background check.  The FCRA, however, also requires that this disclosure be made in writing and “in a document that consists solely of the disclosure.” 15 U.S.C. § 1681b(b)(2).

The plaintiff argued that an employer or prospective employer cannot “procure, or cause a consumer report to be procured, for employment purposes with respect to any consumer, unless ...a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes.” 15 U.S.C. § 1681b(b)(2)(A)(i).  The plaintiffs' attorneys argued that these disclosure requirements are important because they enable consumers to control and correct the information that is being disseminated about them by third parties. These disclosures inform consumers about their rights pursuant to the FCRA because most applicants do not realize that such rights exist.  

The Counsel for the Settlement Class investigated the facts and applicable law regarding Plaintiffs’ claims and Publix’s defenses. The parties negotiated to reach the settlement. Publix will pay approximately $48 to each member of the class.  The total settlement will be around $6.8 million with money going to each of the named plaintiffs, members of the class and plaintiffs' attorneys.