CVS Caremark named in class action lawsuit for violating Fair Credit Reporting Act of job applicants

This is a consumer class action alleging CVS Caremark Corporation’s (“CVS”) violated the Fair Credit Reporting Act, 15 U.S.C. §§ 1681a-1681x (“FCRA”). The FCRA establishes “permissible purposes” for accessing a “consumer report” about a consumer, including employment background reports. 15 U.S.C. § 1681b(a). The FCRA authorizes the release of a consumer report by a consumer reporting agency to a person it has reason to believe “intends to use the information for employment purposes. However, an employer, like CVS, is not automatically entitled to access and then use the consumer report. The FCRA requires CVS to first obtain a job applicant’s “consent” to the release of the report and, then, if the report is found to have negative information, CVS must properly notify the applicant about that information if it is used as a factor in the employment decision. Once the mandated pre-consent disclosures are made and consent is obtained, and a background report is procured, the FCRA establishes procedures that CVS must follow when using a report that contains potentially disparaging or derogatory information.

Title 15 U.S.C. § 1681b(b)(3) requires that if CVS is “intending to take” an “adverse action” based in whole or in part on information in the consumer report then the employer must provide the applicant a copy of the report and a copy of a description of a consumer’s rights under the FCRA before the “adverse action” is taken. 15 U.S.C. § 1681b(b)(3) (emphasis added). This notice is intended to provide the prospective or current employee a meaningful period of time to meet with the employer and the consumer reporting agency to explain or correct the accuracy or veracity of information in his report.

The action is brought on behalf of thousands of employment applicants throughout the United States who have been the subject of consumer reports used by CVS for employment purposes, and who have been denied employment by CVS without first having been provided a copy of their respective consumer reports and a copy of their consumer rights.

As alleged in the complaint, CVS adopted and maintained policies and procedures that failed to require CVS human resource personnel to provide pre-adverse action notice to job applicants, including a copy of the applicants’ consumer report and a description of the applicants’ rights as required by 15 U.S.C. § 1681b(b)(3). As a result, job applicants are deprived of the opportunity to review and dispute the adverse information contained in the consumer report prior to CVS taking adverse action against such applicants.