Ninth Circuit Limits the Acceptable Format of and Language in Background Check Disclosure Forms Given to Job Applicants, they explain…
The federal Fair Credit Reporting Act (“FCRA”) prohibits employers from obtaining consumer reports (which may include credit reports, criminal and civil court records and judgments) on job applicants without appropriate disclosures. California has similar disclosure requirements pursuant to the Investigative Consumer Reporting Agencies Act (“ICRAA”). Liability for violations of the FCRA and the ICRAA can be substantial.
Disclosure forms are often simplified to combine the disclosure requirements of both the FCRA and the ICRAA into a single disclosure consent form. However, in the recent case of Gilberg v. California Check Cashing Stores, LLC, 913 F.3d 1169 (9th Cir. 2019), the Ninth Circuit has effectively ended this practice. Instead, employers must now provide two separate forms – one for the FCRA disclosure and one for the ICRAA disclosure.
In Gilberg, the plaintiff was hired after a criminal background report was obtained, but shortly thereafter voluntarily terminated her employment. She had signed a pre-employment consumer report disclosure and authorization form in connection with her job application which consolidated the dissemination of required federal and state disclosures. She subsequently filed a class action suit against her former employer, alleging that the disclosure form violated fundamental FCRA and ICRAA requirements. The Ninth Circuit agreed, reasoning that the employer’s disclosure form was not clear because, among other things, it combined federal and various state disclosure requirements. (The court also found that the form contained typographical errors).
As a result of the Ninth Circuit’s decision, employers must now use separate federal and state disclosure forms, and each disclosure must include only the required statutory language, in clear and simple form, without any additional, extraneous references or information.
Guidance for Employers Post-Gilberg
In light of the Gilberg decision, DDS also recommends that our clients carefully review all background check disclosure and consent forms, to ensure that they are compliant with the Gilberg decision. Separate forms must be utilized for state and federal disclosure notices, and they should include only statutorily required disclosure language. Federal disclosure forms should not reference state disclosure requirements, and vice versa. Neither form should include any extraneous information, and all disclosure documents should be carefully reviewed for any typographical or grammatical errors. Finally, the language of any disclosure document should contain a legible font and simple and clear language, such that a reasonable person could understand its meaning.
DDS encourages our clients to contact us If there are any further questions concerning the Gilberg ruling, please feel free to contact us at (800) 647-7999.
As an advocate and strategic partner for our clients, DDS does everything possible to fight for your rights to obtain relevant information in the pursuit of making an informed hiring decision and other employment choices. Although we have our own thoughts about the scope of information you should be able to receive, review and make determinations on, our goal is to protect you by ensuring that you only receive compliant information on each report.
The following is the latest decision coming out of the Ninth Circuit Court of Appeals concerning the timeframe of Criminal Record reporting. There was more than one issue decided on, but DDS already observes what those decisions represent.
We won’t bore you with all the legal details of this latest decision, but instead will give you a short summary that we will follow, and in turn, the change of information that we will make available to you.
The decision holding that under the Fair Credit Reporting Act's rule prohibiting consumer reporting agencies (DDS) from reporting any "record of arrest" older than seven years, the measuring period for a criminal charge runs from the “date of entry” (arrest or file date) rather than the “date of disposition”.