In the last two years, the number of employment class actions under the federal FCRA has ballooned. Most of the cases reported in the media have involved challenges to an employer’s compliance with the FCRA’s disclosure and authorization requirements. However, recent class action filings show that the plaintiff’s bar also is bringing class claims that call into question employer compliance with the FCRA’s adverse action requirements, including allegations that the employer has failed to provide any pre-adverse action notice, or if notice has been provided, to wait an appropriate amount of time before taking final adverse action against an individual. Two recent federal court decisions tackling “pre-adverse action” notices demonstrate that compliance with the FCRA is indispensable for all employers that use background reports to make hiring and employment decisions. Now more than ever, it is advisable for employers that use background checks for employment purposes to take steps to ensure compliance with the applicable provisions of the FCRA.

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