Following two recent Ninth Circuit decisions involving Fair Credit Reporting Act (FCRA) background check decisions, employers should consider reviewing their background check disclosure and authorization forms and online screenings to ensure there is no surplus or extraneous language in the disclosure and the disclosure is clear and conspicuous. In Walker v. Fred Meyer, Inc., No. 18-35592 (March 20, 2020) and Luna v. Hansen & Adkins Transport, Inc., No. 18-55804 (April 24, 2020), the court determined that 1. Background check disclosures may contain some concise explanatory language, but there is a limit to what is explanatory and what is unlawfully extraneous; 2. Background check disclosures may be presented at the same time as other materials, including application materials, as long as the background check disclosures are on a separate form; 3. Language in a separate authorization form has no impact on the disclosure form’s compliance with the FCRA standalone/”consist solely” requirement, and 4. The FCRA does not mandate that the pre-adverse action letter include an express request to the applicant/employee to contact the employer directly to dispute the accuracy of the information in the background check report.
