Whole Foods Can’t Delay Background Check Class Action, Judge Rules

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A Florida federal judge ruled last week that Whole Foods Market cannot delay a proposed background check class action lawsuit, which accuses the grocery store chain of violating the Fair Credit Reporting Act, pending the outcome of a similar FCRA case under review by the Supreme Court.

The Whole Foods class action lawsuit alleges the company violated the FCRA by performing illegal background checks on prospective and existing employees without informing these individuals of this background check process.

On Monday, April 27, the Supreme Court agreed to review a challenge by Spokeo Inc. to the Ninth Circuit’s order to revive a proposed FCRA class action lawsuit, which alleges the “people search engine” company published false information about the lead plaintiff Thomas Robin’s.

Based on this future decision, Whole Foods argued that the case against it should be stayed pending the Supreme Court’s decision regarding the Robins v. Spokeo Inc. case, since the higher court’s ruling would affect whether or not the plaintiff of the Whole Foods class action lawsuit has legal grounds to bring forth his allegations.

U.S. District Judge Richard A. Lazzara disagreed with the defendant’s argument, stating in an April 29 ruling:

“This Court has no way of divining whether the Supreme Court will decide the Spokeo case in such a manner as to benefit the Defendant’s position with regard to the Plaintiff’s lack of standing to pursue this case for himself and those similarly situated to him. The Court concludes, therefore, . . . that a stay of these proceedings to await a decision from the Supreme Court in Spokeo is not warranted.”

Currently, because of these and other similar FCRA class action lawsuits, the Supreme Court is debating whether or not consumers can sue a company for FCRA violations without claiming actual injury or damages. In their motion to stay the Whole Goods background check class action lawsuit, the company argues the issues raised in their case are identical to those brought forth in the Spokeo lawsuit, as the plaintiff only alleges statutory damages.

Plaintif Colin Speer originally filed this Whole Foods class action lawsuit in December of last year, claiming the supermarket chain does include disclosures for a  waiver and release of liability that also states that a consumer report may be obtained for employment purposes. However, Speer claims that this Whole Foods background check practice violates FCRA statutes, since employers seeking to run background checks on potential or current employees must disclose these intentions in a separate document that only contains information regarding the background check disclosure.

In March of this year, the plaintiff sought certification for the proposed Whole Food background check class, at which point Whole Foods attempted to dismiss the suit all together. However, Judge Lazzara rejected Whole Food’s bid, rejecting the supermarket group’s argument that Speer’s exhibits clearly demonstrates that employees are given the disclosure and the liability release in two separate forms.

The plaintiff is represented by Luis A. Cabassa and Brandon J. Hill of Wenzel Fenton Cabassa PA.

The Whole Foods Background Check Class Action Lawsuit is Colin Speer v. Whole Foods Market Group Inc., Case No. 8:14-cv-03035 in the U.S. District Court for the Middle District of Florida.

UPDATE: A class action settlement over Whole Foods’ allegedly illegal background checks was preliminarily approved on Sept. 15, 2015.