Cert. Sought in Whole Foods Background Check Class Action

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Last week, the plaintiff in the class action lawsuit alleging Whole Foods Market Group LLC improperly notified prospective employees about background check results asked a Florida federal judge to certify the proposed Class.

Lead plaintiff Colin Speer filed the Whole Foods class action lawsuit in December of last year. In it, he alleged that Whole Foods performed background checks on him and other employees and job applicants in violation of the Fair Credit Reporting Act. According to the class action lawsuit, when Speer applied online for a job at Whole Foods, the process did not include a disclosure that the company may obtain consumer reports for employment “in a document that consists solely of the disclosure.”

According to the motion for Class certification of the Whole Foods class action lawsuit, the Class size is approximately 78,400, using numbers from the supermarket’s 2013 annual report. “It has been repeatedly recognized that class certification is particularly appropriate when — as is the case here — the class claims arise from standardized forms or policies and procedures that are common to all proposed class members,” the motion says.

Speer further alleges that even though the forms at issue are both single-page documents, they don’t comply with the law because they must be read and analyzed together. “Put simply, [Whole Foods] cannot avoid its obligations under the FCRA (or liability) by merely adding a page break,” continues the plaintiff in his motion seeking certification of the class action lawsuit.

“The Fair Credit Reporting Act (‘FCRA’) … requires employers to use certain standard form documents and to follow specified policies and practices when they use ‘consumer reports’ to assess the qualifications of prospective and current employees,” notes Speer in his motion. “[Whole Foods] unlawfully inserted liability release provisions into forms purporting to grant [Whole Foods] authority to obtain and use consumer report information for employment purposes,” continues the plaintiff. “The FCRA forbids this practice, requiring that forms granting the authority to access and use consumer report information for employment purposes be ‘stand alone forms’ and not include any additional agreements,” he concludes.

In February, a motion to dismiss the FCRA class action lawsuit was filed by Whole Foods. In their motion, Whole Foods argued that the plaintiff did not have an actionable complaint because he did not lose his job or sustain any other damages because of the background check. Whole Foods also argued that the plaintiff is asking the court to “disregard reality” by claiming that the disclosure was not a separate, single-page and standalone document and that “apparently now [the plaintiff] relying on a non-existent statutory proscription against separate disclosure and authorization forms and/or his own unique interpretation of what the FCRA requires.”

According to the motion for certification of the Whole Foods class action lawsuit, the Class would include all Whole Foods employees or prospective employees in the United States who were the subject of a consumer report acquired by Whole Foods within the last five years. Additionally, Speer is seeking statutory damages of $100 to $1,000 for each violation, as well as punitive damages and attorneys’ fees.

Speer 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, Tampa Division.

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