Background Check Forms Face Increased Scrutiny in Federal Court

Businesses should check their background check consent forms and their pre-adverse action waiting periods, after a recent federal court decision. In Reardon v. Closetmaid Corporation, the district court granted summary judgment in favor of a class of more than 1,800 job applicants. The Court ruled that the employer’s consent and disclosure form was improper because it contained a waiver of liability, even though the inclusion of such waiver language is commonplace. The Court also granted summary judgment to a subclass of job applicants who were properly sent a pre-adverse action notification form, as required under the FCRA, but whose applications were then denied within fewer days than what this Court considered a “reasonable time period.” Because the Court also determined that the employer’s background check procedures were unreasonable, the company faces statutory liability of $100 to $1,000 per applicant, plus punitive damages and attorneys’ fees. Yet, there is no indication that any of the class members suffered any injury whatsoever. As a result, cautious employers should consider removing from their consent and disclosure forms any waiver language, and implementing an internal policy of waiting five business days between sending a pre-adverse action notice and taking any adverse action.

Read more

Post By Barry Nixon (262 Posts)

W. Barry Nixon is the COO, the leading background screening information portal and online worldwide directory of professional background screening firms and Suppliers to the background screening industry. He co-authored the landmark book, Background Screening & Investigations: Managing Hiring Risk from the HR and Security Perspective. He also is the publisher of award winning newsletters, The Background Buzz and The Global Background Screener, and the author of the Background Checks column in PI Magazine.

In addition, Barry is a past recipient of the elite ‘Top 25 Influential People in Security’ by Security Magazine and past Co-Chair, International Committee for the National Association for Professional Background Screeners (NAPBS). He currently serves as a Global Ambassador for NAPBS.

You can contact Barry at 1-949-770-5264 or online at