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Prelude To A Potential FCRA Violation
The Dallas Cowboys unnecessarily created a potentially expensive problem with their handling of former receiver, Lucky Whitehead: not only one for their public relations team, but one for their employment law attorneys. On July 24, 2017, news broke in the sporting world that Whitehead had been arrested in Prince William County Virginia on shoplifting charges on June 22. Late that afternoon, the Cowboys waived (fired) Whitehead.
There was a significant problem, however-It wasn’t him. On July 25, a single day after the termination, Prince William County Police announced that all charges against Whitehead had been dropped and his arrest voided. Turns out, they arrested an individual who simply identified himself as Whitehead and the deception wasn’t realized until fingerprints were analyzed.
What Are The Ramifications?
The National Football League’s collective bargaining agreement, probably doesn’t reference the Fair Credit Reporting Act (FCRA), but a strong argument can be made that the Cowboys violated Whitehead’s under that law (if only he was aware). Imagine the same situation occurring within your organization. The arrest information begs to be officially investigated, but even without further review, the employer still has critical responsibilities? As the recipient of potentially derogatory information, the employer is obligated to provide the applicant with “Pre-Adverse Action” in writing to include the report. At this point, the applicant (Whitehead) could have disputed the findings before being terminated. That dispute would have negated the information and resulted in him keeping his job (roster spot). Either way, before terminating him, the employer must issue “Adverse Action” in writing. Failure to follow these mandated steps makes for a very attractive case against the employer.
How Do You Avoid Getting Sacked?
Your employment screening policy and procedure should expressly address each of the required steps of the FCRA. A leading cause of civil actions levied against employers is the failure to properly execute Pre and Adverse Action communications. Any information identified during the course of a background check, pre or post-employment, falls within the FCRA’s auspices. Failure to take the appropriate action, as demonstrated by the Cowboys’ actions, will ultimately result in a claim that may be indefensible.