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Liability Releases for Background Checks Are Unlawful
Employers in all industries perform background checks as a part of their pre-employment screening process, sometimes performing such checks post-employment, as well. The federal Fair Credit Reporting Act (FCRA) requires employers to first inform applicants and employees about the intent to obtain and use a background check to make employment-related decisions before the employers are permitted to actually get the background check. The FCRA also requires employers to obtain the employee's or applicant's permission before procuring the background check. But what the law does not do is provide employers with a template disclosure or any concrete guidance on what the disclosure should say. Rather, the law simply forbids employers from including anything beyond “solely the disclosure” and authorization in the form used to inform individuals about the employer's intent to obtain a background check.
Catastrophic Risks
It may seem like a simple issue, but the risk of violating this provision — dubbed the “Stand Alone Disclosure” rule — can be catastrophic. Because of the way the statute's damages scheme is written, a mere violation of the provision may be negligible. However, if a violation is found to be “willful,” it can subject the company to damages up to $1000, and considering how many of these cases are brought as class actions, it's easy to see how a seemingly innocuous form can result in bet-the-company litigation.
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Yachts, Jets, Horses & Hooch: Specialized Commercial Leasing Models
Defining commercial real estate asset class is essentially a property explaining how it identifies — not necessarily what its original intention was or what others think it ought to be. This article discusses, from a general issue-spot and contextual analysis perspective, how lawyers ought to think about specialized leasing formats and the regulatory backdrops that may inform what the documentation needs to contain for compliance purposes.
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