Ninth Circuit Issues Two (Mostly) Pro-Employer Background Check Decisions

The Ninth Circuit recently issued two mostly pro-employer federal Fair Credit Reporting Act (FCRA) background check decisions that held:

  • background check disclosures may contain some concise explanatory language, but there is a limit to what is explanatory and what is unlawfully extraneous;

  • 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;

  • language in a separate authorization form has no impact on the disclosure form’s compliance with the FCRA standalone/”consists solely” requirement; and

  • 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.

The cases are Walker v. Fred Meyer, Inc., No. 18-35592 (March 20, 2020), and Luna v. Hansen & Adkins Transport, Inc., No. 18-55804, (April 24, 2020).

Background Check Disclosures May Contain Some Concise Explanatory Language

Under the FCRA, 15 U.S.C. § 1681 et seq.,an employer that wants to obtain a background check report about a job applicant or employee must first provide the individual with a standalone document with a clear and conspicuous disclosure of the employer’s intention to do so, and the employer must obtain the individual’s authorization.