Five Guys Burgers Hit With Class Action for FCRA Violations Relating to Background Checks

Five Guys Enterprises, franchisor of Five Guys Burger Co., has been accused of California labor violations by former employees including violating the FCRA by conducting background checks on employees and not notifying them correctly.

According to Troutman Sanders LLP, The plaintiff, Jeremy Lusk, alleges that when he applied for his position with Five Guys they presented him with a background check disclosure that included, among other things, agreements regarding his drug use, references, fiduciary obligations, and consent to arbitration.  He also alleges the disclosure included a release of liability and that Five Guys failed to properly inform him of his rights under the FCRA.  He further claims Five Guys procured a background check without first providing him the separate disclosure required for such reports.  From those claims, he alleges Five Guys violated numerous provisions of the FCRA.

Lusk also brings similar claims under the California Investigative Consumer Reporting Agencies Act, based on the same alleged failures in Five Guys’ disclosure forms, such as the inclusion of extraneous information.  He also alleges the disclosure failed to include certain items required by California law, such as the name, address, and telephone number of the agency preparing the report.  In addition to alleging a violation of California’s Investigative Consumer Reporting Agencies Act, Lusk also alleges Five Guys violated the California Consumer Credit Reporting Agencies Act, which strictly regulates credit information.  He alleges Five Guys procured credit information about prospective employees in connection with their applications and, again, on the back of the same faulty disclosure, was denied information required by the California statute.

According to the FCRA, before an employer secures a consumer report on an employee or applicant, they must tell the applicant or employee in writing and in a stand-alone format. The employer must also certify that they notified the applicant or employee and got their permission to get a consumer report, complied with all of the FCRA requirements, and will not discriminate against the applicant or employee or otherwise misuse the information, as provided by any applicable federal or state equal opportunity laws or regulations.

California is one of the states that limit the circumstances in which employers may use credit reports in making employment decisions. California law requires employers to give notice if they plan to check credit reports, and again if they plan to use the information in the report as the basis for a negative employment decision.

To ensure compliance, it’s a good idea to continually monitor the applicable federal and state laws related to consumer reports. Some states, like California,  restrict the use of consumer reports – usually credit reports – for employment purposes.



Jeremy R. Lusk v. Five Guys Enterprises LLC et al.

Cisive Employment Background Screening and Form I-9/E-Verify Solutions now available in the Oracle Cloud Marketplace

Oracle Cloud Customers can now streamline and better ensure compliance in Background Checks and I-9 Processes


Holtsville, NY – June 13, 2017 – Cisive, a leading provider of tech-enabled and compliance-driven human capital management and risk management solutions, and Gold level member of Oracle PartnerNetwork (OPN), today announced that its enterprise-level employment background screening and electronic Form I-9 solutions are now available in the Oracle Cloud Marketplace offering for Oracle Cloud Application customers. The integration between Cisive’s industry-leading background screening solution for enterprise organizations and Oracle Talent Management Cloud enables clients to seamlessly initiate employment background checks and obtain timely report status all from within Oracle Talent Management Cloud.

The Oracle Cloud Marketplace is a one-stop shop for Oracle customers seeking trusted business applications and service providers offering unique business solutions, including ones that extend Oracle Cloud Applications. Oracle Cloud is the industry’s broadest and most complete public cloud, delivering enterprise-grade services at every level of the cloud technology stack including software as a service (SaaS), platform as a service (PaaS), infrastructure as a service (IaaS), and data as a service (DaaS).

“Our integration with Oracle Talent Management Cloud streamlines the screening process, enhancing data integrity and security while reducing data entry for busy human resources and recruiting professionals,” said Paul Jackson, senior vice president, business development with Cisive. “Cisive’s participation in the Oracle Cloud Marketplace further extends our commitment to the Oracle community and enables customers to easily reap the benefits of Cisive’s compliance-driven employment screening solution. We look forward to leveraging the power of the Oracle Cloud to help us achieve our business goals.”

The Oracle Cloud Marketplace offers an intuitive user interface to browse and search for available applications and services, as well as user ratings and reviews to help customers determine the best business solutions for their organization. With its new automated application installation features, customers can easily deploy provider business applications from a centralized cloud interface.

About Cisive

Cisive is a leading provider of tech-enabled and compliance-driven human capital management and risk management solutions. The company’s core onboarding and pre-employment background screening offering provides clients with a streamlined, high quality, and regulatory compliant solution. Cisive is accredited by the NAPBS and dedicated U.S. based account management teams uphold our commitment to customer satisfaction. Comprehensive services include background screening, vendor/contractor screening, executive screening, drug testing, social media searches, fingerprinting and electronic Form I-9/E-Verify solutions. Cisive serves many of the country’s largest and most complex organizations. Our experts will work closely with you to customize solutions that fit your specific needs. For additional information, please visit

 About Oracle PartnerNetwork

Oracle PartnerNetwork (OPN) is Oracle’s partner program that provides partners with a differentiated advantage to develop, sell and implement Oracle solutions. OPN offers resources to train and support specialized knowledge of Oracle’s products and solutions and has evolved to recognize Oracle’s growing product portfolio, partner base and business opportunity. Key to the latest enhancements to OPN is the ability for partners to be recognized and rewarded for their investment in Oracle Cloud. Partners engaging with Oracle will be able to differentiate their Oracle Cloud expertise and success with customers through the OPN Cloud program – an innovative program that complements existing OPN program levels with tiers of recognition and progressive benefits for partners working with Oracle Cloud. To find out more visit:

Oracle and Java are registered trademarks of Oracle and/or its affiliates.


Doreen Koronios
Director of Marketing
(631) 862-9300 x318

NEW WHITE PAPER: What You Need to Know About Electronic I-9 Signature

In our continuing efforts to keep our clients informed and out of harm’s way, we have created a new White Paper entitled:  What You Need to Know About Electronic I-9 Signature.

While the I-9/E-Verify process can be a daunting task, keeping compliant with the federal laws and deadlines are even more daunting. Using an electronic I-9 solution will allow employers to better ensure that each Form I-9 is properly completed, signed and retained. In addition, electronically retained Forms I-9 are more easily searchable, which is important for re-verification, quality assurance and ease of inspection when audited.

According to the U.S. Citizenship and Immigration Services (USCIS) website, the Form I-9 posted on the site does not currently have an electronic signature function. However, employers are allowed to implement an electronic Form I-9 with an electronic signature function. This electronic Form I-9 process must be compliant.

This informative White Paper discusses the importance and benefits of a compliant Form I-9 signature process, includes a Form I-9 electronic signature compliance checklist, and details how Cisive keeps the entire electronic Form I-9 process completely compliant for employers.

 Click here to read our new White Paper: What You Need to Know About Electronic I-9 Signature. 

Cisive’s mission is to keep its clients out of harm’s way! To learn more, contact a Cisive Specialist at 1-866-557-5984 or click here.

5 Red Flag Practices to Avoid When Choosing a Background Screening Vendor

How does one select the right background screening company?  We all know the basic elements of putting together an RFP but there are other more important factors that are essential to help your company avoid costly litigation. Today, as companies seek to constrain costs, it is a group effort with subject matter experts providing input into the RFP questions to be presented by purchasing departments who will make the first cut of respondents.  Often, the purchasing department will make the initial evaluation of RFP results on cost alone and allow only the lowest cost providers to be submitted to the business users for consideration. The unintended consequence of putting price before subject matter expertise is that research quality and applicant experience will suffer and your company could be at risk for litigation.

The litigation landscape is fierce against employers and those low-cost providers alleging violations of law precipitated by the very shortcuts that are market driven by low pricing.  There are ways to evaluate a background screening partner and survey litigation trends while offering guidance to avoid litigation traps.

Fred Giles, Cisive’s SVP of Strategic Initiatives, assessed the litigation landscape and created a survey of recent litigation activity.  A quick look at the survey from January of 2016 to May of 2017 for just four of the larger companies in the background industry reveals 79 allegations of FCRA violations. Those suits named the background company as plaintiff 56 times, and the employer as one of the plaintiffs 39 times. Perhaps most concerning, almost all were certified Class Actions! Of course, all cases involved at least one applicant and were the result of perceived or actual poor applicant experiences serious enough to involve the courts. If quickly identifying 79 FCRA related allegations in less than 2 years involving just four of the industry’s largest companies was not concerning enough, consider that additionally, cases alleging another 75 FCRA violations were settled in that time frame by those same 4 companies! These suits have become so lucrative for plaintiffs bar (remember that the actual class members end up receiving only token amounts in the settlements), that there are plaintiffs recycled or named in several suits against multiple companies now and we can expect these suits to continue despite the Spokeo decision (which is a topic for another time).

There are common industry practices that can lead to litigation and an employer seeking a background report provider should specifically guard against such practices.

Red Flag Practices

  1. Unrealistic Turnaround Time: The truth is that raw data only becomes actionable information when it is properly sourced, verified, and filtered.  There are no free lunches. If one or more prospective background providers are offering turnaround times and prices that appear to be far better than others that may suggest dangerous shortcuts such as the use of raw database searches or unverified reports.  These are precisely the shortcuts that drag both the provider and the employer into court on allegations of FCRA violations.  Significantly lower numbers on package pricing may indicate that either the lead frequency assumptions were under-recognized to achieve an artificially low bid, which will balloon in practice after an award is made, or is indicative of habitually shoddy research that intentionally fails to include all appropriate name and address combinations exposing the employer to unanticipated risk. Cheap and easy may be fast and sleazy!
  2. Over reliance on “national” criminal database: There is no such commercially available product as a true national database. While the use of compiled criminal databases is a recommended supplemental practice to cover a wider scope since most state courts are accessed only on a county level, there are huge and significant portions of the country that are not covered by these datasets.  Even when used properly as a supplemental criminal source, the results need to be verified with research conducted in the appropriate court as the data is often incomplete, certainly not up to date and lacking sufficient identifiers for a positive match.  Unfortunately, there are background companies who will provide these databases as standalone searches either because they fail to educate their clients as to the shortcomings or to appease employers who think they only need cheap, quick, and easy.  Over-reliance on compiled databases is another quick route to a rotten candidate experience and civil action.
  3. Disclaimers: Background providers should stand behind their work, period. Any company that includes disclaimers about accuracy or completeness on their reports or in their service agreements is informing the employer that they can expect to be sued over their reports and that the background provider is expressly not standing behind the quality of their work.  Ask for sample reports and service agreements to examine to avoid poor quality work hiding behind disclaimers. Caveat emptor!
  4. Absence of regular consultative engagement: In evaluating prospective background providers, be sure to review RFP or bid response materials for evidence of a true consultative partnership. In the pre-award phase, perhaps the clearest indication of the correct approach is the inclusion of a proposed plan to hold regular and frequent program reviews with the employer.  While the preferred frequency may shift over time, these meetings ensure thoughtful two-way discussions of the program address not only tactical issues that may arise but also more strategic and consultative opportunities to improve the candidate or employer experience with the program.  As the laws evolve, both statutory and those driven by case law, these discussions can address those changes to adjust the program accordingly.
  5. Offshoring: The only reason to offshore is to lower cost. Quality is not a driving factor and, in fact, part of the offshoring decision equation is how to compensate for all the potential pitfalls of offshoring: distance and time-zone differences, turnover, lack of loyalty caused by low wages and competing interests offering pennies per hour more, and physical and cyber security issues. In today’s litigious environment and with increasing cyber threats, the loss of data and control over personally identifiable information (PII) is a paramount concern for businesses.  Offshoring increases those risks for very little return.

Selecting a background screening provider is not a simple task, and the stakes are high.  There is risk to the company and its employees and shareholders if the background screening program is deficient. It should not be assumed when reviewing pricing proposed in response to an RFP that you are seeing a true “apples to apples” comparison.  The quality of background services varies widely and does matter.  The wrong decisions can be very costly both in monetary terms and in reputational damage in the marketplace at large as well as perhaps, most significantly, in the talent marketplace.  Understand the red flags. Be prepared to evaluate quality and organizational fit to assess the long-term cost of your relationship with a background provider.  Those who persist in chasing pennies in the selection phase will be feeding dollars to plaintiff’s bar in the future.

Cisive is relentless in its mission to keep its clients out of harm’s way! To learn more, call 1-866-557-5984 or click here.



The Case for Re-Screening Current Employees

Gov. Henry McMaster of South Carolina recently signed a law that people who sell or manage property in the state must undergo a background check to renew their license. This was prompted by a real estate agent who is accused of killing seven people.

Todd Kohlhepp, who is charged with seven counts of murder, kidnapping, first- degree sexual assault, and gun violations, checked the box acknowledging he had a felony conviction on his 2006 application but lied about why.

Perhaps if he was required to be re-screened on an annual basis, his actual felony conviction would have been picked up and maybe the crimes he committed since his first application could have been prevented.

Employment screening is a very important tool in reducing employee theft, workplace violence, and negligent hiring liabilities. It’s great when an employee is hired with a clean background check but what happens when that same employee commits a crime while employed? Suppose the driver you hired was subsequently convicted of a DUI? How would you know that the accountant you hired had fallen on hard times and was involved in check cashing fraud?

Implementing a re-screening policy in your company just makes good sense. If you decide to re-screen employees, remember that you must notify the employee, obtain written consent and follow the pre and post-adverse action requirements of the FCRA. Also remember that a criminal record doesn’t necessarily mean an automatic dismissal of the employee according to state and federal laws. However, a robust background screening program is your best defense in maintaining a safe work environment and protecting your assets.

To learn more about Cisive’s re-screening services, click here or call 866-557-5984.

New EEOC Guidance on Workplace Harassment Prevention

The EEOC says an alarming percent of the thousands of charges it receives annually now include harassment allegations which generate a lot of litigation. Charges of harassment come at a steep cost for employers. According to the EEOC, the Commission resolved 28,642 harassment allegations in 2015. Of those, 5,518 charges were resolved in favor of the charging party resulting in $125.5 million in fines for the employers. In light of these findings, the EEOC has taken steps to help both workers and managers handle the problem.

EEOC 2015 Statistics in the Private Sector

  • 27,893 charges received (31%) alleged harassment
  • 28,642 charges resolved (31%) alleged harassment
  • $125.5 million secured for employees alleging harassment in EEOC’s pre-litigation process
  • 33 lawsuits filed by EEOC (23% of all suits filed) alleged harassment
  • 42 lawsuits resolved by EEOC (27% of all suits resolved) alleged harassment
  • $39 million in monetary benefits secured for employees in EEOC lawsuits involving harassment

The EEOC has created a strong guidance on the best ways to prevent harassment in the workplace. The guidance includes four checklists that the EEOC urges employers to use to prevent harassment. Some of the highlights of the guidance include:

Leadership & accountability

  • A prevention effort that is supported with resources at the highest levels of the organization.
  • Time that is allocated by leadership for a harassment prevention effort.
  • A harassment prevention policy that is easy to understand.
  • Surveys to assess whether your employees have felt harassed.
  • Bystander intervention training that empowers co-workers to intervene when they witness harassment.
  • Civility training to promote acceptable conduct rather than just focusing on “what not to do.”

Anti-harassment policy

  • A clear description of prohibited conduct, with examples.
  • A clear description of your reporting system and the multiple avenues to report harassment.
  • Statements that individual names will be kept confidential to the extent possible.
  • Assurances that those who report misconduct, or act as witnesses to it, will be protected from retaliation.

Reporting & investigations

  • Managers who take reports of harassment seriously.
  • An environment in which people feel safe reporting behavior.
  • Well-trained investigators, who document all the steps they take.
  • Procedures (like follow-ups) to determine if individuals who report harassment experience retaliation.
  • Systems to ensure alleged harassers are not presumed guilty until it is determined that harassment occurred.
  • Communication of the findings of the investigation to all parties and, if appropriate, pending discipline.

Compliance training

  • Regularly repeated training.
  • Training provided to all employees at every level of the organization.
  • Qualified, live & interactive trainers.
  • Examples of harassment tailored to your organization and employees.
  • Simple terms that describe your reporting process.
  • Clear explanations of the consequences of harassment.
  • Instructions on how managers can report harassment up the ladder.

To view the 95-page report from the EEOC, entitled “Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace,” click here.

State Developments: Newly Enacted Background Check Legislation

STATE DEVELOPMENTS – Below is a listing of newly enacted background check legislation:

  • ArizonaB. 2247: Requires each person who applies for a school bus driver certificate to submit an identity verified fingerprint card. H.B. 2196: Includes criminal background check provisions for applicants and employees of residential care institutions. S.B. 1380: Amends criminal background screening requirements for individuals who apply for child welfare agency licensing.
  • ArkansasB. 1440: Amends criminal background check requirements for paid canvassers. H.B. 2000: Requires employers to provide employees or applicants of employment a copy of their background check upon request;
  • IowaF. 419: Requires criminal history background check requirements for applicants for nursing licenses. H.F. 547: Requires temporary staffing agencies to conduct background investigations of employees staffing health care providers ;
  • MontanaB. 362: Prohibits the licensing board from disseminating criminal history information across state lines;
  • North DakotaB. 1097: Requires a criminal background screening for applicants of nursing licenses;
  • OklahomaB. 1448: Requires applicants for an original chiropractic license to undergo a national criminal background check; and
  • West VirginiaB. 386: Requires criminal history background checks for those who work, volunteer, or operate medical marijuana dispensaries.



Despite high job satisfaction and moderate engagement, 40% of employees are likely to look for another job in 2017. Source: SHRM 2017 Employee Job Satisfaction and Engagement survey.

Cisive’s Onboarding Solution can help!

Keep your new hires engaged and positive from the get-go! Cisive’s Onboarding Solution was developed to create an unmatched onboarding experience.

See for yourself! Click here to book a demo today.

Cisive and iCIMS Announce Partnership to Enhance Employment Background Checks and Provide Recruiters with Integrated Talent Acquisition Solutions

Cisive joins iCIMS’ growing partner ecosystem and online marketplace.

Cisive, a leading provider of tech-enabled and compliance-driven human capital management and risk management solutions, today announced a partnership with iCIMS, a leading provider of cloud-based talent acquisition solutions.

Cisive, focused on providing the most accurate and legally-compliant employment background screening, drug testing, onboarding, and electronic Form I-9/E-Verify solutions to enterprise-level organizations, now offers an integration into the iCIMS Talent Platform, a suite of talent acquisition tools that enables organizations to attract, find, screen, and manage talent for their ever-changing business needs. The integration offers a seamless transfer of candidate data from the iCIMS Talent Platform to the Cisive platform to streamline the initiation of background check requests, then provides timely report status from Cisive back into iCIMS, where recruiters can manage the hiring process from start to finish, all within a single, cloud-based application.

“Cisive’s integration with iCIMS provides for the seamless and secure transmission of candidate data between the two platforms, initiating our compliance-driven screening processes,” said Paul Jackson, senior vice president, business development of Cisive. “Our shared focus on providing the highest standards of customer care, accuracy, and compliance will enhance our clients’ efficiency and candidate experience.”

“As the average cost of a bad hire is estimated to be 30 percent of an employee’s first-year earnings, it is crucial for businesses to obtain a comprehensive view of their candidates before making a final hiring decision,” said Michael Wilczak, senior vice president, strategy and corporate development of iCIMS. “With the addition of Cisive to our robust partner ecosystem and online marketplace, we look to provide our customers with the integrated solutions needed to enhance their talent acquisition processes and make informed hires.”

Cisive will also benefit from UNIFi, iCIMS’ Platform-as-a-Service framework that enables partners to integrate their software applications with the iCIMS Talent Acquisition Suite and market their products to iCIMS’ customers through the recently launched iCIMS Marketplace. The iCIMS Marketplace, iCIMS’ online environment featuring the largest partner ecosystem in the talent acquisition industry, enables companies to shop for and engage with supporting technology providers that are the best fit for their talent acquisition and management needs – all in one logical, easy-to-use interface. Additionally, through UNIFi, partners can build long-term, lasting relationships through standard APIs that offer flexible data sharing, adding value to their customer experience.

About Cisive:

Cisive is a leading provider of tech-enabled and compliance-driven human capital management and risk management solutions. The company’s core onboarding and pre-employment background screening offering provides clients with a streamlined, high quality, and regulatory compliant solution. Cisive is accredited by the NAPBS and dedicated U.S. based account management teams uphold our commitment to customer satisfaction. Comprehensive services include background screening, vendor/contractor screening, executive screening, drug testing, social media searches, fingerprinting and electronic Form I-9/E-Verify solutions. Cisive serves many of the country’s largest and most complex organizations. Our experts will work closely with you to customize solutions that fit your specific needs. For additional information, please visit

 About iCIMS, Inc.:

iCIMS is the leading provider of talent acquisition solutions that help businesses win the war for top talent. iCIMS empowers companies to manage their entire hiring process within the industry’s most robust Platform-as-a-Service (PaaS). Built on the foundation of a best-to-market talent acquisition software suite, iCIMS’ PaaS framework, UNIFi, allows employers to expand the capabilities of their core talent acquisition technology by integrating with the largest partner ecosystem in talent acquisition to help them attract, find, screen, and manage candidates. Offering scalable, easy-to-use solutions that are backed by award-winning customer service, iCIMS supports more than 3,500 contracted customers and is one of the largest and fastest-growing talent acquisition solution providers.

© 2017 iCIMS, Inc. All rights reserved.

Silicon Valley Tech Firm Settles Asian Hiring Discrimination Suit for $1.66 Million

Palantir Technologies has settled with the U.S. Labor Department to resolve charges it discriminated against Asian applicants in hiring for engineering jobs.

The Palo Alto-based firm is a computer software and services company that works with the U.S. government to fight terrorism and stop human trafficking. As a federal contractor, the company is prohibited from discriminating in employment on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, disability or against military veterans.

The suit alleged that Palantir discriminated against Asian job applicants by routinely eliminating them in the screening process, even when they were as qualified as white applicants. Palantir argued that the suit only addressed three out of 44 job titles for which Palantir hired employees within the 18-month analysis period analyzed by the department. It also argued that the suit wrongly suggested that the company “should have hired a workforce that matched the racial composition of the group of individuals whose resumes Palantir received, without regard to candidate qualifications.” Lastly, it pointed out that 36% of those eventually hired across all of the job openings within that same timeframe were Asian—a rate that is actually above the percentage of “qualified” Asian employees in the external labor market (according to stats from the U.S. Equal Employment Opportunity Commission).

Palantir has settled the suit while strongly denying the allegations. “We settled this matter, without any admission of liability, in order to focus on our work,” the company said. “We continue to stand by our employment record and are glad to have resolved this case.”

The settlement includes $1.66 million in back wages and other monetary relief, including the value of stock options, to those who were discriminated against. The company will also extend job offers to eight eligible people.