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Employer Notice to Job Applicants When Conducting a Background Check


In an important decision for employers that conduct background checks, on April 24, 2020, the U.S. Court of Appeals for the Ninth Circuit affirmed a summary judgment in favor of the employer in the case of Leonard Luna v. Hansen and Adkins Auto Transport, Inc. The Court of Appeals held that an employer does not violate the Fair Credit Reporting Act (FCRA) by (i) providing a job applicant the disclosure at the same time as other employment materials; and (ii) failing to place the authorization in a standalone document.

FCRA Disclosure and Authorization

At issue was the FCRA required disclosure and authorization that employers must provide job applicants when conducting a background check through a third-party background screening company. Plaintiff filed a class action alleging that the employer’s hiring process violated the FCRA’s disclosure and authorization requirements by presenting the disclosure together with other employment application materials. The FCRA requires that employers provide a “clear and conspicuous disclosure,” in writing, in a document “that consists solely of the disclosure” that a background check may be conducted AND the applicant authorizes such background check in writing. The FCRA specifically states that the authorization may be combined with the disclosure. (FCRA § 604(b)(2)(A)(i) and (ii)).

Takeaways

The Court of Appeals made two important points relevant to the legal requirements placed on employers when conducting background checks.

  1. The plaintiff in the case took issue with the employer’s practice of providing employees with the disclosure at the same time as, but as a separate document from, other employment documents. The Court of Appeals held that while Section 604(b)(2)(A)(i) of the FCRA requires that a disclosure be in “a document that consists solely of the disclosure,” no authority suggests that a disclosure must be distinct in time from other documents, as well. Thus, an employer does not violate the FCRA by presenting a standalone FCRA disclosure form contemporaneously with other employment application materials. FULL ARTICLE