Background Screening Disclosure Forms Remain Under Fire!
This week two lawsuits, involving the language used on a background screening disclosure, were in the news.
One of the recent lawsuits was filed in the Northern District of California where the plaintiff asserted that her prospective employer, Alameda Health, used a disclosure form that contained too much and not enough information.
The other suit in the news this week involved a decision by the Ninth Circuit of Appeals regarding Gloria Mitchell v. Winco Foods, LLC, No. 17-35998, (9th Cir. 2018). The plaintiff in this case alleged that the forms were not FCRA-compliant.
Fortunately, for the prospective employers in both of these cases the claims were dismissed. However, the critical take away is that the disclosure forms should be clear and not confusing, allowing the consumer to make an educated decision whether to authorize the screening.
Disclosures are such a hot topic, they were the subject of one of our recent blogs, in Mid-November 2018. In that article we discussed the importance of using a clear and conspicuous, stand-alone disclosure and proper consent form. The recent lawsuits further highlight how often disclosure forms are the subject of litigation and the importance of compliance with the Fair Credit Report Act (FCRA) requirements.
Specifically, 15 U.S.C. § 1681b(b)(2)(A)(i) and (ii), require:
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.
SelectHire, OPENonline’s full service screening solution can help. Please contact us for more information.
To receive request a copy of a recent webinar, visit us here. For future updates, join our mailing list at www.openonline.com.
The Federal Trade Commission is another resource for employers. They produce guidance on background checks for prospective employers.
This is not legal advice, for legal advice please seek legal counsel.