A Pennsylvania-born putative class-action suit, which alleges the nationwide retailer Big Lots violated federal law by overstocking job applicant disclosure statements with too much information, has landed in Chicago federal court.
The one-count suit, between Aaron Abel and Big Lots Stores, Inc., was filed Nov. 2 in Philadelphia County Court, before moving a few weeks later to U.S. District Court for Eastern Pennsylvania. Both sides then agreed to transfer the case to U.S. District Court for Northern Illinois for the convenience of the parties and witnesses. An order to this effect was signed by Pennsylvania Federal Judge Eduardo Robreno on Dec. 15.
Abel, who lives in Philadelphia, claimed the Ohio-based Big Lots violated the federal Fair Credit Reporting Act. Abel is drawing on the part of the Act that governs the use of background checks for employment purposes.
Abel said he applied in November 2013 to work at a Big Lots facility in Philadelphia. As part of the application process, Big Lots gave him a form titled “Consent to Request Consumer Report & Investigative Consumer Report Information.”
According to the Act, a background report disclosure form is to be provided job applicants, but such a form is to only do two things: notify the applicant a report may be undertaken and allow for the applicant’s written authorization for the report. The purpose of the form is to enable applicants to exercise rights accorded them by the Act, such as maintaining their privacy and challenging any errors in the report.
Abel said this requirement is known as the “stand-alone disclosure requirement” and the disclosure must be “clear and conspicuous.”
However, Abel alleged the Big Lots form goes beyond a simple disclosure and authorization to contain extraneous material, such as the passage that says the applicant “fully understand[s] that all employment decisions are based on legitimate non-discriminatory reasons.”
In Abel’s view, these words are neither a disclosure nor an authorization, and so are barred by the Act.
Abel also alleged the Big Lots form violates the Act by incorporating a page regarding the laws of several states that pertain to privacy and background investigations. Other violations, in Abel’s eyes, are the inclusion of information as to how background material will be gathered, statements about disputing a background check and contact information for the agency that handles inquiries about checks.
To Abel’s way of thinking, all the added wording “renders the form something other than a ‘stand-alone’ disclosure and, accordingly, violates the Fair Credit Reporting Act.”
Abel noted the Act was created in 1970, allegedly giving Big Lots “over 40 years to become compliant,” especially considering the “judicial interpretation” of the Act over the years and the Federal Trade Commission’s “longstanding regulatory guidance.”
Big Lots’ corporate origins date to 1967, with the name “Big Lots” used from the early 1980s forward.
As a consequence of the allegedly overstuffed disclosure form, Abel claimed he suffered a “concrete injury in the form of being deprived of a disclosure to which he was statutorily entitled as a result of Defendant’s failure to comply with the FCRA’s stand-alone disclosure requirement.”
Abel is represented by the following firms: Winebrake & Santillo, of Dresher, Penn.; the Prinz Law Firm, of Chicago; and Nichols & Kaster, of Minneapolis, Minn.
Big Lots is defended by BakerHostetler, a firm with offices around the country, including Chicago and Philadelphia.
A status hearing is set for Feb. 16. U.S. District Judge Rebecca Pallmeyer is presiding over the case in Chicago.