In March, the Ninth Circuit issued its third opinion on the question of when an employer’s background check disclosure satisfies the so-called “standalone” disclosure requirement in the Fair Credit Reporting Act (FCRA), specifically providing practical guidance for drafting such disclosures. Employers may order background reports for employment purposes but must first disclose their intention to do so and obtain authorization. The disclosure must be “clear,” “conspicuous,” and presented in a “document” that consists “solely” of the disclosure. The Ninth Circuit’s opinion discussed each paragraph of the employer’s disclosure and ruled that most, but not all, of the text were part of the disclosure rather than impermissible “extraneous” material.
