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Navigating the FCRA’s Standalone Disclosure Requirement

Since 2011, the number of Fair Credit Reporting Act (FCRA) lawsuits filed annually has continued to climb. The data demonstrates that employers struggle with compliance, especially regarding the FCRA’s disclosure requirements. Under the FCRA, an employer must provide an applicant or an employee with a “clear and conspicuous” disclosure that a “consumer report” -- commonly referred to as a background check -- may be obtained for employment purposes.  Importantly, before running the background check, the disclosure must be provided in a document that consists solely of the disclosure.  These disclosure requirements have proven problematic for employers in practice. 

In 2017, the U.S. Ninth Circuit Court of Appeals clarified that a FCRA disclosure cannot contain a liability waiver. Just last month in Gilberg v. California Check Cashing Stores LLC, the Ninth Circuit ruled that the FCRA disclosure cannot contain any additional disclosures that may be required by applicable state law. In that case, the Court reinstated class claims that the employer’s disclosure violated the FCRA because the disclosure provided to job applicants was not clearly written, nor was it contained in a “standalone” document.

The Gilberg case makes clear that a court will closely scrutinize any extraneous information contained in the FCRA-required disclosure, regardless of the purpose for its inclusion. The offending language in Gilberg contained disclosures mandated by separate state laws. Stated simply, if the language included in the disclosure is not necessary to clearly and conspicuously advise an applicant or employee of FCRA rights, it likely should be excluded.   

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume IX, Number 77


About this Author

Emma R. Schuering, Polsinelli PC, FMLA Matters Attorney, labor and employment lawyer, kansas city

For each engagement in which Emma Schuering is involved, she seeks to provide concise and articulate legal counsel that aligns with clients’ business objectives. Emma represents employers in a variety of employment litigation matters, including the enforcement of non-compete agreements and FMLA claims. She also focuses her practice on appeals and dispositive motions.

Prior to joining Polsinelli, Emma worked as a law clerk at the Missouri Court of Appeals, Southern District, in Springfield, Missouri. During her tenure, Emma was exposed to number...