9th Circuit Finds Violation Of Fair Credit Reporting Act

An employer that uses third party vendors to gather applicant information as part of its background check process is required to notify the applicant of his rights under the FCRA via a “clear and conspicuous disclosure” in a document that consists solely of the disclosure – i.e., a “stand-alone disclosure.” The employer in the Gilberg case used a FCRA disclosure that also addressed applicants’ rights under the laws of specific states. The court determined that this extraneous information violated the FCRA’s stand-alone requirement. The court also found that the employer’s disclosure used language a reasonable person would not understand and was confusing because it combined a discussion of state and federal law. As such, the disclosure was not clear. The employer did satisfy the “conspicuous” requirement, however, by capitalizing, bolding and underlining the headings for each section of its disclosure and labeling the form so an applicant could see what she was signing. The court recommended that the employer use a larger, clearer font in the future.

This case illustrates the importance of these forms. Both the content and the appearance of FCRA disclosures can be scrutinized by attorneys and ultimately, the courts. Employers can use the recently-updated model forms available via the Consumer Financial Protection Bureau to ensure that their disclosures satisfy the requirements of the FCRA. For more information about these requirements, please contact a KZA attorney.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.