It’s been a tough year for Chipotle. In January, a major pork shortage that affected nearly a third of all locations nationwide disrupted the chain’s carnitas supply for months. Last month, the burrito chain faced a class action claim that it had been using GMOs in its food, despite advertising to the contrary. Now comes word that a former applicant is accusing the fresh-mex restaurant of shady hiring practices. In particular, a California woman says Chipotle buried an applicant’s consent to a background check in other messy language.
Consent Form 101
For anyone who is a longtime reader of ActiveCare, you know this a big No-No! Basic Fair Credit Reporting Act (FCRA) law states that employers must use a separate, stand-alone document to obtain consent. No additional language. No other hiring materials. No other extraneous information. The form is simple and direct.
Here’s what a disclosure form needs to have:
- It’s written
- It’s asked for on a form separate from any other forms related to the candidate’s application for the job
- It’s required if you will hire an outside agency (like Active Screening) to check out a candidate
- Consent often includes the right to inquire about a candidate’s credit report (but this should be specifically stated)
- There can be no waivers, additional wording, or other unneccessary information on the form that can be confusing to applicants
- The disclosure must provide specific information about the person’s rights to obtain information regarding the investigative report, including that they can view the file maintained by the consumer reporting agency, obtain a copy of the file by mail or in person, or obtain a summary of the report over the telephone.
- It’s required to obtain extra information like school transcripts or military service records
- An applicant does NOT have to consent to a background check. You are entitled to take them out of consideration if they do not consent.
Where Did Chipotle Go Wrong?
Here’s what the plaintiff in the case is claiming:
1.) The application contained a disclosure allowing the company to conduct background check reports on applicants that was surrounded by other language pertaining to additional information requiring her consent.
2.) The chain didn’t provide a box to check to obtain information regarding the investigative report or provide information on how to get a copy of the report.
The FCRA requires any employer intending to run a consumer report to first disclose to applicants or employees that a consumer report may be obtained for employment purposes. This disclosure cannot be included in an employment application or other document that contains any extraneous information. The employer must also obtain an employee’s or applicant’s written consent before running the report.
Employers also must comply with specific reporting requirements. Before obtaining a consumer report from a consumer reporting agency, the employer must provide certification to the reporting agency that they are requesting the report for employment purposes; have provided the required disclosure to the applicant; have obtained the necessary written consent to obtain the report; will provide the applicant with a copy of the report along with notifying them of their rights before taking any adverse action based in whole or in part on the results; an will not use the results from the report in a manner that violates federal or state equal opportunity laws.
If the allegations prove true, Chipotle may find itself in the same situation as several other big-name companies who’ve made glaring FCRA bungles. Check out this list:
Nearly all of those cases were settled for large amounts.
So, what can you do to ensure the third-party CRA you’ve hired to conduct your background checks is on the ball with consent and compliance? Ask to see the forms. Have an employment attorney review them. And conduct your own periodic reviews of your CRAs consent forms to pick up if anything has been changed.
In Active Screening’s case, we have made our consent form templates completely transparent and available on our website. The template we offer is in full compliance with federal and state laws. It has been vetted by our FCRA attorney who is a veteran in the industry. If you want to take a look for yourself, click here. There’s even some state specific forms for California and New York who have additional compliance laws employers and CRAs need to follow.
Active Screening’s templates are for instructional purposes only. Active Screening recommends consulting your legal counsel prior to using these templates to ensure your compliance with all state and federal laws.
We’d like to hear from you on this matter, though! Why do you think so many high-profile companies are still falling victim to violating FCRA law – especially when it comes to consent documents? Leave a comment below or shoot us an email here.