The use of background checks in making hiring decisions is facing increased scrutiny, according to the lead plaintiffs’ attorney in Long v. the Southeastern Pennsylvania Transportation Authority (SEPTA).
The plaintiffs in the Long case alleged that they were conditionally offered positions as SEPTA bus operators, subject to completion of a background check. As part of that process, the plaintiffs disclosed previous felony convictions for drug offenses. As a result, the plaintiffs claim, SEPTA withdrew the job offers.
In the class action lawsuit filed in April in the U.S. District Court for the Eastern District of Pennsylvania, the plaintiffs allege that SEPTA violated the Fair Credit Reporting Act (FCRA) because it did not tell potential employees that a consumer check could be used as part of the hiring process.
The complaint also alleges that SEPTA failed to give the plaintiffs a pre-adverse action letter and a copy of the report before the decision not to hire them was made.
SEPTA argued in a motion to dismiss the class action lawsuit that the plaintiffs failed to prove that they were harmed as a result of the alleged FCRA violations. Specifically, SEPTA claims that since the plaintiffs told the potential employer about the drug convictions, they did not suffer any harm as a result of the supposed FCRA violations.
However, the plaintiffs countered with an objection that alleges their privacy was invaded as a result of the FCRA violations.
“The rights to privacy and information are harms that Congress specifically enacted the Fair Credit Reporting Act to protect against,” Outten & Golden LLP partner and lead plaintiffs counsel Ossai Miazad told the Pennsylvania Record.
“Under the FCRA, an employer cannot procure a consumer report unless it complies with strict disclosure and authorization requirements. These are rights that Congress enacted to safeguard the privacy of job seekers like (the plaintiffs).”
Miazad said the increased scrutiny about the use of background checks by employers is good for local communities.
“These are civil rights cases of great public significance, and employers should not be able to escape them on technical procedural arguments,” Miazad said. “While finding a decent job is hard enough for anyone, it can be nearly impossible when someone is forced to wear a scarlet letter around their neck for a mistake they made one, five, or 10 years ago.”
Although the public policies of Pennsylvania and Philadelphia encourage the employment of those previously convicted of criminal offenses, Miazad said employers continue to discriminate. She said this accentuates the need for serious enforcement efforts.
“We should not be putting roadblocks in the way of people who are eager to make a better life for themselves by finding work, contributing to their families and communities and turning a corner on their past,” Miazad said.
Miazad said SEPTA misconstrues the law and ignores the directives of the Pennsylvania Legislature to employers using criminal history records to make hiring decisions. In addition, Miazad said she believes the case against SEPTA will move forward.
“Plaintiffs do not think that SEPTA will be able to stop this case in its tracks before the court has an opportunity to make a substantive decision on their claims,” Miazad said.