PHILADELPHIA – The use of background checks in making hiring
decisions is facing increased scrutiny, according to the lead plaintiffs’
attorney in Long v. the Southeastern
Pennsylvania Transportation Authority (SEPTA).
The plaintiffs in the Long case alleged that they were conditionally
offered positions as SEPTA bus operators, subject to completion of a background
check. As part of that process, the plaintiffs disclosed previous felony
convictions for drug offenses. As a result, the plaintiffs claim, SEPTA withdrew
the job offers.
In the class action lawsuit filed in April in the U.S. District
Court for the Eastern District of Pennsylvania, the plaintiffs allege that
SEPTA violated the Fair Credit Reporting Act (FCRA) because it did not tell
potential employees that a consumer check could be used as part of the hiring
The complaint also alleges that SEPTA failed to give the plaintiffs a
pre-adverse action letter and a copy of the report before the decision not to
hire them was made.
SEPTA argued in a motion to dismiss the class action lawsuit
that the plaintiffs failed to prove that they were harmed as a result of the
alleged FCRA violations. Specifically, SEPTA claims that since the plaintiffs
told the potential employer about the drug convictions, they did not suffer any
harm as a result of the supposed FCRA violations.
However, the plaintiffs countered with an objection that
alleges their privacy was invaded as a result of the FCRA violations.
“The rights to privacy and information are harms that
Congress specifically enacted the Fair Credit Reporting Act to protect against,”
Outten & Golden LLP partner and lead plaintiffs counsel Ossai Miazad told
the Pennsylvania Record.
FCRA, an employer cannot procure a consumer report unless it complies with
strict disclosure and authorization requirements. These are rights that Congress enacted to
safeguard the privacy of job seekers like (the plaintiffs).”
Miazad said the increased scrutiny about the use of
background checks by employers is good for local communities.
“These are civil rights cases of great public significance,
and employers should not be able to escape them on technical procedural
arguments,” Miazad said. “While finding a decent job is hard enough for anyone,
it can be nearly impossible when someone is forced to wear a scarlet letter
around their neck for a mistake they made one, five, or 10 years ago.”
Although the public policies of Pennsylvania and
Philadelphia encourage the employment of those previously convicted of criminal
offenses, Miazad said employers continue to discriminate. She said this
accentuates the need for serious enforcement efforts.
“We should not be putting roadblocks in the way of people
who are eager to make a better life for themselves by finding work,
contributing to their families and communities and turning a corner on their
past,” Miazad said.
Miazad said SEPTA misconstrues the law and ignores the
directives of the Pennsylvania Legislature to employers using criminal history
records to make hiring decisions. In addition, Miazad said she believes the
case against SEPTA will move forward.
“Plaintiffs do not think that SEPTA will be able to stop
this case in its tracks before the court has an opportunity to make a substantive
decision on their claims,” Miazad said.