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Volume XI, Number 108

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[FCRA] A Bridge Too Far: Ninth Circuit Rejects Former Employee’s “Novel” Interpretation of the FCRA

Last week, in Luna v. Hansen & Adkins Auto Transp., Inc., 2020 U.S. App. LEXIS 13215  (9th Cir. Apr. 24, 2020), the Ninth Circuit rejected a former employee’s argument that his employer violated the FCRA by providing the required FCRA disclosure together with other application materials, holding that such a “novel” interpretation of the FCRA “stretches the statute’s requirements beyond the limits of law and common sense.”

The FCRA forbids procurement of a consumer report for employment purposes unless “a clear and conspicuous disclosure has been made in writing to the consumer . . . in a document that consists solely of the disclosure.”  15 U.S.C. § 1681b(b)(2)(A)(i).  The former employee argued that his employer violated this provision of the FCRA by providing the required disclosure simultaneously with other application material.  As the Ninth Circuit noted, the plaintiff “attempts to bootstrap FCRA’s physical requirement into a temporal one.”  The Ninth Circuit had little trouble rejecting plaintiff’s attempts to “stretch” the statute, finding:  “Were we to accept Luna’s argument that a FCRA disclosure cannot be presented together with other employment documents, ‘it is difficult to see how an employer could ever provide an applicant written application materials without violating FCRA’s standalone document requirement.’” 

The Court also rejected the former employee’s argument that the employer violated the FCRA because the authorization was not presented in a standalone document.  As the Court noted, “[t]his attempted wholesale importation of FCRA’s disclosure requirements runs aground on the statutory language, which provides only that a prospective employer must obtain the authorization “in writing.” 15 U.S.C. § 1681b(b)(2)(A)(ii). Crucially, the authorization subsection of FCRA lacks the disclosure subsection’s standalone document requirement. Compare 15 U.S.C. § 1681b(b)(2)(A)(ii) with 15 U.S.C. § 1681b(b)(2)(A)(i).” As employers know all too well, the FCRA has many technical requirements that can trip up an unwary employer, but the plaintiff’s efforts here to stretch the FCRA’s requirements beyond those stated in the statute is a bridge too far.

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© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 119
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Amy Brown Doolittle Litigation Attorney Squire Patton Boggs Washington DC
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Amy Doolittle co-leads the Squire Patton Boggs Class Action & Multidistrict Litigation Practice and serves as a member of the firm's Global Board.

She has extensive experience in product liability and mass tort matters, financial services litigation, consumer and commercial arbitrations, class actions and MDL proceedings. Amy has represented clients in high-stakes litigation proceedings across a wide array of industries, from pharmaceutical and chemical companies to financial services and insurance companies. Amy has argued in front of various state and federal trial courts and...

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