We represent victims of reverse discrimination and anti-DEI whistleblowers

Your employer should evaluate you based on the work you do and the way you conduct yourself on the job. This seems straightforward enough, but there have always been cases of discrimination where supervisors and companies made judgments based on personal characteristics unrelated to job performance. Now, advanced technology has brought us to a place where some employers are using artificial intelligence to try to generate a readout on the people who work for them.

In response, the Consumer Financial Protection Bureau (CFPB) has recently issued guidance aimed at protecting workers from the increasing use of digital tracking and opaque decision-making systems. The guidance specifically targets companies that utilize third-party consumer reports, including background checks and surveillance-based AI or algorithmic scores, to assess their employees.

Digital tools, often powered by artificial intelligence and machine learning algorithms, can collect vast amounts of personal data about individuals, including internet browsing history, social media activity and even biometric data. While these data can be used to improve efficiency and productivity, they also pose significant risks to worker privacy and fairness.

To address these concerns, the CFPB has invoked the Fair Credit Reporting Act (FCRA) to regulate the use of third-party consumer reports in employment contexts. The FCRA requires employers to:

• Obtain worker consent — Under the new CFPB provision, employees are not allowed to access third-party reports relating to employees without explicit consent to do so. 

• Provide transparency — Employers must provide workers with clear and concise information about the nature of the consumer report and how it will be used in employment decisions.

• Permit employee challenges — Workers must be given the opportunity to dispute any inaccuracies or errors in their consumer reports.

By applying the FCRA to these emerging technologies, the CFPB aims to ensure that workers have a voice in how their data is used and that they are protected from unfair and discriminatory practices. Companies that use third-party consumer reports in employment decisions must carefully review their practices to ensure compliance with the FCRA. Failure to comply could result in substantial penalties and legal liability.

Kardell Law Group delivers strong legal representation to clients on a full range of employment law matters. If you believe that private information about you is being accessed or used illegally by your employer, we can advise you of your legal options under the new CFPB guidance.