Employment Screening and FCRA Addressed by 9th Circuit Case

Employment Screening and FCRA Addressed by 9th Circuit Case Over the past several years, there have been many class actions across the country from plaintiff’s counsel regarding FCRA disclosures being provided to candidates as a standalone document. On April 24, 2020, employers and CRA’s had a win in the 9th Circuit, in defence of some FCRA notice cases.

The 9th Circuit upheld the dismissal of an FCRA case that argued that an employer violates the FCRA: (1) By providing an FCRA disclosure simultaneously with other employment materials.

(2) By failing to place a FCRA authorization on a standalone document.

In this particular case, the disclosure appeared on a separate sheet of paper, and the authorization appeared at the end of the application and “included other notices, waivers, and agreements unrelated to acquiring consumer reports.”

The 9th Circuit rejected this argument by saying that Plaintiff’s argument sketches the statutes requirement beyond the limits of law and common sense. It is true that FCRA requires “that a disclosure form contain nothing more than the disclosure itself,” Walker v.

Fred Meyer, Inc., No. 18-35592, 2020 WL 1316691, at *5 (9 th Cir. Mar, 20, 2020), but no authority suggests that a disclosure must be distinct in time, as well. [Employer’s] disclosure may have been provided alongside other application materials, but it appeared in a standalone document- precisely what FCRA requires.

The 9th Circuit also took additional step of noting that the disclosure was “clear and conspicuous” and even included a copy of the disclosure in the opinion.

The disclosure is similarly “clear and conspicuous,” which we have interpreted in the context of FCRA to mean a “reasonably understandable form” that is readily noticeable to consumer.” 15 U.S.C. § 1681b (b)(2)(A)(i); Gilberg, 913 F.3d at 1176 (citations omitted). The disclosure, entitled “FAIR CREDIT REPORTING ACT DISCLOSURE STATEMENT,” explains in plain language that, as required by law, the applicant is “informed that reports verifying your previous employment, previous drug and alcohol test results, and your driving record may be obtained on you for employment purposes.” Aside from the notice, the disclosure contains nothing but the employer logos and signature lines.

Want to read the entire 9th Circuit Case opinion, visit here: https://cdn.ca9.uscourts.gov/datastore/opinions/2020/04/24/18-55804.pdf Data facts are committing and bringing our clients real-time news that affects their hiring processes. Be in-touch to stay up-to-date on trends, on-going legislation, and upcoming requirements.