Background Check Disclosures Still Being Litigated. So Far - This is a Very Hot Employer Topic of 2019!
OPENonline has posted multiple times about the current litigation frenzy surrounding employer background screening disclosures. But the language included in disclosures is already shaping up to be one of the hottest employer litigation topic of 2019.
Case in point is the recent Ninth Circuit ruling in Gilberg v. California Check Cashing Stores, LLC, No. 17-16263, 2019 WL 347027 (9th Cir. 2019). Since the decision on January 29, 2019, we haven’t been able to count the slurry of articles, emails, and posts covering the ruling.
The Ninth Circuit decision highlights the importance of employers using a clear and conspicuous, stand-alone disclosure and proper consent form that complies with the Fair Credit Report Act (FCRA) requirements. This decision further delineates the perils of including state required language on the disclosure, particularly if the state language included is not the state where the subject will work.
Specifically, 15 U.S.C. § 1681b(b)(2)(A)(i) and (ii) of the Fair Credit Reporting Act, requires:
Except as provided in subparagraph (B), a person may not procure a consumer report, or cause a consumer report to be procured, for employment purposes with respect to any consumer, 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;
- the consumer has authorized in writing (which authorization may be made on the document referred to in clause (i)) the procurement of the report by that person.
The Federal Trade Commission provides resource for employers. They produce guidance on background checks for prospective employers. With the increase in litigation on disclosure/authorization forms employers should have their disclosure authorization forms and processes reviewed by legal counsel.
The National Law Review has also posted several informative articles that clearly outline the issue and specific takeaways. You can read their posts here, here and here.
SelectHire, OPENonline’s full service screening solution can help. Please contact us for more information.
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This is not legal advice, for legal advice please seek legal counsel.