Sears Faces Class Action Alleging FCRA Violations

Edgar M. Rivera, Esq.

A job applicant is suing Sears for violating the Fair Credit Reporting Act (FCRA), alleging that Sears failed to provide him with a “stand alone” disclosure before obtaining his consumer report and rejected his application without giving him a copy of his consumer report.

The FCRA requires that a user of a consumer report for employment screening purposes provide applicants with copies of their consumer reports, a written summary of their rights, and a reasonable notice period before taking any “adverse employment action.” Sears allegedly rejected job applicants based on information in their consumer report without providing the report to the applicants. The FCRA also requires that an FCRA disclosure form be “clear and conspicuous,” meaning that the disclosure must not be combined with, or attached to, any other document.  Brian D. Hall, an attorney with Porter Wright and Certified Information Privacy Professional, wrote, “[Although the FCRA] does not prevent an employer from combining the disclosure and the authorizations requirements into one form, it does prohibit the disclosure and authorization from being combined with other things, like an employment application.”  Sears’ disclosure allegeldy contained extraneous information, including state law disclosures. The FCRA provides plaintiffs with statutory damages of no less than $100 and no more than $1000 per willful violation, in addition to punitive damages, costs and attorneys’ fees.

On September 19, 2014, Scott Hopfinger of Raytown, Missouri applied for work with Sears. He received a job offer conditioned upon him completing a disclosure form that would allow Sears to obtain his consumer report. Nearly three weeks later, he contacted Sears’ general manager inquiring as to when he was to report to work. The general manager told him that “his application was stuck in the system.” Ten days later, Mr. Hopfinger received a text from the general manager notifying him that Sears’ Human Resources Department had denied his employment. Mr. Hopfinger did not receive his consumer report until two days later. He did not receive a written description of his rights.

On May 8, 2015, Mr. Hopfinger, on behalf of himself and other putative job applicants, filed his lawsuit in the 19th Judicial Circuit Court, Cole County Missouri against Sears Roebuck. On June 10, 2015, Sears removed the case to the Western District of Missouri. The suit seeks class status for two groups: all employees and applicants (1) who executed Sears’ standard form to procure a consumer report; and (2) who suffered adverse employment based on information contained in a consumer report, were not provided with a copy of the report, were not provided with a reasonable time to challenge any inaccuracy in the report, and were not provided with a written description of their rights. Mr. Hopfinger claims that Sears willfully violated the FCRA because, among other reasons, consumer-reporting agencies are required to provide notice to users of consumer reports of the users’ legal obligations under the FCRA before procuring consumer reports and Sears had access to legal advice to develop an FCRA compliance plan.  Sears has not yet responded to Mr. Hopfinger’s complaint. Its answer is due by July 1, 2015.

Sears joins a growing number of similar large-scale FCRA class action lawsuits, including actions against Aerotek, Lowe’s, Swift Transportation, and Whole Foods.

If you believe an employer has unlawfully taken adverse action against you on the basis of a background check, please contact The Harman Firm, LLP.