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Employment Law Update: Third Circuit urged to revive claims accusing SEPTA of mishandling job applicants’ criminal records

December 18, 2017

The 3rd Circuit will soon decide whether an employer must comply with the plain language of the Fair Credit Reporting Act (FCRA) by providing job applicants with pre-adverse action notices prior to denying them a job based upon their outdated criminal record.

As job applicants are aware, a majority of employers require an applicant to pass a criminal background screening before beginning employment. However, an employer’s ability to use an applicant’s criminal record is often limited or regulated by local, state, and federal law.

For example, FCRA regulates the collection of credit information, which includes criminal records. The FCRA also places strict procedures on employers when they use criminal record information for hiring purposes. Specifically, Section 1681b (3) requires employers to provide the applicant with a pre-adverse notice prior to making the final hiring decision if the employers rely in whole or in part on the applicant’s criminal record to take an adverse action (such as not hiring the individual).

Despite the plain language of the statute, several job applicants, represented by Ryan Allen Hancock of Willig, Williams & Davidson among others, filed a class action in the Eastern District of Pennsylvania alleging that SEPTA did not provide them with a pre-adverse action notice prior to denying them a job because of their stale criminal records.

The court dismissed the matter alleging that the Plaintiffs did not have proper standing because they did not allege that the information in the criminal background reports which was used to deny them employment was “inaccurate.” The Plaintiffs appealed to the 3rd Circuit, alleging that they have proper standing to pursue their claims, because SEPTA failed to comply with the FCRA since they did not provide the employees with a pre-adverse notice.

On Dec. 12, 2017, the 3rd Circuit heard oral argument on the Plaintiffs’ appeal. You can listen to the oral argument at http://www2.ca3.uscourts.gov/oralargument/audio/17-1889FrankLong,etal.v.SEPTA.mp3

Law360 reported more about the case in their article: 3rd Circ. Urged to Revive SEPTA Background Check Suit

Related information: What Job Seekers Need to Know About Criminal Background Checks

   
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