WATCH OUT FOR FAIR CREDIT REPORTING ACT DISCLOSURE DOCUMENTS

The Fair Credit Reporting Act (FCRA) prohibits the use of consumer reports for employment purposes unless "a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured in a document that consists solely of the disclosure that a consumer report may be obtained for employment purposes, and that the consumer authorized the procurement of the consumer report in writing."  Thus, job applicants must be given notice that the potential employer will run a background report on that individual as part of the application process, and the consumer must provide written authorization allowing the employer to request the background report.  Further, the disclosure and authorization must be set forth in a separate stand-alone document. 

This seemingly simple requirement has resulted in numerous lawsuits against employers alleging this type of FCRA violation.  Several lawsuits have been brought as class actions alleging that the job application included a waiver and release of liability on the same form that included a consumer report disclosure in violation of the FCRA.  See Syed v. M-1 LLC, No. 14-17186 (C.A. 9, 1/20/17).  In a ruling on January 29, 2019, an appellate court ruled that an employer who includes information on both state and federal credit reporting acts on the same document violates the FCRA's "stand-alone document" requirement.  Gilberg v. Cal. Check Cashing Stores, No. 17-16263 (C.A. 9, 1/29/19). 

Some of these cases have been defended on the basis that the plaintiff does not satisfy the injury requirement for standing to sue by alleging a "bare procedural violation" of the FCRA that does not result in concrete harm.  See Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016).  However, the courts seem to be searching for ways in which a consumer job applicant may have been disadvantaged in the procedural process.  The courts have differed on whether a breach of the stand-alone requirement is a bare procedural violation that does not satisfy the concrete injury requirement.

The requirement for stand-alone disclosure forms particularly gets complicated in the use of online applications.  The courts have not yet issued rulings on how language presented in an online application can be "stand-alone" and caution is suggested to include the language by itself on its own page or "screen shot."  There is potential in the cases for statutory penalties, punitive damages, and attorneys fee awards to a successful plaintiff. 

Editor's Note:  Employers need to be careful about meeting all the technical requirements of the FCRA, as plaintiffs can allege that confusing language in the background check disclosure forms, even those caused by shoddy grammar, can potentially make them invalid under the FCRA.  Some courts have even found disclosure forms inadequate because they included unnecessary information that detracted from the disclosures they were required to provide.