Background Check Disclosure Forms Must Be Clear, Standalone

The United States Court of Appeals for the Ninth Circuit made clear that a prospective employer violates the standalone requirement of the federal Fair Credit Reporting Act (FCRA) by including extra material, such as state disclosure requirements, that goes beyond basic and clear authorization language. Reiterating its 2017 decision in Syed v. M-I, the Ninth Circuit issued another decision Jan. 29 in Gilberg v. California Check Cashing Stores finding that before procuring a consumer report on a job applicant, the employer must provide a "clear and conspicuous disclosure" that is "in a document that consists solely of the disclosure." In Gilberg, the court was presented two questions: (1) whether the prospective employer may satisfy the FCRA's standalone document requirement by providing job applicants with a disclosure containing extraneous information in the form of various state disclosure requirements; and (2) whether the specific disclosure, in that case, satisfied the clear and conspicuous requirement. The answer to both questions was a resounding no, and the case was remanded, in part, for further proceedings.