On October 1, 2015, U.S. District Judge Mark Kearney rules that Genesis Healthcare LLC (Genesis) did not violate the Fair Credit Reporting Act (FCRA) when it employed a third party to conduct a criminal history background check on a potential employee because Genesis provided notice to the employee that General Information Services Inc. (GIS) was going to conduct the inquiry. Genesis informed the potential employee that the inquiry uncovered one felony conviction for injuring a child BEFORE Genesis took any adverse action. Genesis even provided the potential employee with the opportunity to challenge the decision not to hire her based on the criminal history. Judge Kearney said, “All of the evidence confirms Ramos took advantage of the opportunity and Genesis evaluated her challenge, discussed it internally and only then reached a final decision.”
However, while the court determined that Genesis did not violate the FCRA, and that GIS did not violate the FCRA by reporting a criminal conviction over 7 years old, the court determined that a jury will decide whether the background check was done properly and accurately by GIS. If the jury can conclude that the criminal history was a substantial factor in not hiring the plaintiff, GIS may be found negligent in not taking reasonable measure to ensure accuracy in its report to Genesis. We will keep you updated. For now, if you are running background checks on potential employees you should consider a refresher on what the FCRA requires.