Ninth Circuit Creates ‘Concise Explanation’ Standard for Background Check Disclosure Forms

On March 20, 2020, the Ninth Circuit issued its opinion Walker v. Fred Meyer, Inc., 2020 U.S. App. LEXIS 8809 (9th Cir. Mar. 20, 2020) and created a “concise explanation” standard to judge when an employer’s background check disclosure form violates FCRA.

Plaintiff applied for a job at Fred Meyer’s supermarkets. As part of the application process, plaintiff completed two forms related to a background check. The first form was a “Disclosure Regarding Consumer Reports and Investigative Consumer Reports.” The second form was an “Authorization Regarding Consumer Reports and Investigative Consumer Reports.”

Plaintiff was hired but then received a “pre-adverse action notice” created by the consumer reporting agency. The “pre-adverse action notice” provided a copy of the consumer report and informed plaintiff that he could dispute the accuracy of the report with the consumer reporting agency. Ultimately, Fred Meyer terminated plaintiff based on information found in his consumer report.

Plaintiff then filed a class action and alleged that Fred Meyer willfully violated FCRA in two respects: (1) the Disclosure Form was unclear and contained extraneous information, in violation of 1681b(b)(2)(a); and (2) the pre-adverse action notice failed to notify plaintiff that he could discuss the consumer report directly with Fred Meyer, in violation of 15 U.S.C. 1681b(b)(3).

FCRA provides that an employer may obtain a consumer report about a job applicant if it provides a “clear and conspicuous disclosure . . . in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes” and obtains the applicant’s authorization in writing. FULL ARTICLE