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Publix to Pay $6.8 Million for Alleged FCRA Violations

​Publix Super Markets Inc. has agreed to pay $6.8 million to settle a class-action lawsuit over the supermarket chain’s background check procedures.  Under the Fair Credit Reporting Act (FCRA), employers must provide prior written notice before they can procure a consumer report about any employee or applicant for employment.  The FCRA requires that this notice be “in a document that consists solely of the disclosure.”

In a class-action lawsuit filed in the Middle District of Tennessee, Plaintiff Erin Knights, on behalf of a class of over 90,000 potential class members, alleged that the disclosure used by Publix contained release language in violation of the FCRA.  Specifically, the disclosure used by Publix contained a one-sentence release stating: “I release Publix Super Markets, Inc., its employees, its authorized agents and representatives from any liability in connection with any decisions made concerning my employment based on information reported.”  As a result of this alleged violation, Publix has agreed to pay $6.8 million, which equates to $48 to each of the 90,633 class members after attorney’s fees and costs are deducted.

In December 2013, a Pennsylvania federal district court held that an employer violated the FCRA by including a waiver of rights in a combined FCRA disclosure/authorization form.  It is common practice for employers to include waiver and release language in FCRA authorization forms, however these cases underscore the importance of maintaining the required FCRA disclosure as a stand-alone document when including release language.  While the statute says a FCRA disclosure may also include an authorization, it does not allow for the disclosure to include any other content.  Therefore, employers should provide the disclosure in a stand-alone document and include any desired release language in a separate authorization form.

Violations of the FCRA are subject to statutory damages between $100 and $1,000 for each willful violation of the Act.  In light of these lawsuits, employers who procure consumer reports as part of their background check procedures for employees and applicants should carefully review their FCRA disclosures to ensure compliance with the Act.  

© 2019 Poyner Spruill LLP. All rights reserved.

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About this Author

Danielle Barbour Wilson, Litigation Attorney, Poyner Spruill Law Firm
Associate

Danielle’s practice is focused in the areas of Litigation and Employment Law. She represents private and public employers in a wide range of labor and employment matters. Danielle has assisted in defending putative class actions before federal district and appellate courts and defended claims against local government entities. She also advises clients regarding data protection and privacy issues.

Representative Experience

  • Defends employers in a wide range of employment litigation in both state and federal courts

  • ...
919-783-2982
David L. Woodard, Employment Litigation Attorney, Poyner Spruill, Law firm
Partner

David practices in the area of employment litigation.  He regularly advises and defends clients in race, age, disability and sex discrimination and harassment cases; reviews handbooks and termination issues; and provides compliance advice on matters of employment law.

Representative Experience

McNeil v. Scotland County - Obtained summary judgment for employer where plaintiff alleged race discrimination and retaliation in violation of Title VII of the Civil Rights Act as well as violation of the Americans with Disabilities Act. Successfully defended the judgment in the Fourth Circuit Court of Appeals.

Williams v. City of Fayetteville - Obtained summary judgment on former employee’s claims of retaliation for exercising First Amendment rights, violations of due process, and intentional infliction of emotional distress.
919-783-2854