The Ninth Circuit Court of Appeals has upheld a lower court’s ruling that an employer does not violate the Fair Credit Reporting Act by providing a disclosure simultaneously with other documents and not using a standalone document for the authorization.
A copy of the ruling in the case of Luna v. Hansen and Adkins Auto Transport can be accessed by clicking here.
The plaintiff is a former employee of the defendant. During the hiring process, the application form included a number of authorizations, including the permission to conduct drug testing and background checks. Applicants were required to sign two disclosures. One of the disclosures informed applicants “that reports verifying your previous employment, previous drug and alcohol test results, and your driving record may be obtained on you for employment purposes.” The other disclosure was an authorization form, signed by the applicant, allowing the defendant “or their subsidiaries or agents to investigate my previous record of employment.”
The plaintiff filed suit, alleging the disclosure forms violated the FCRA, which requires “a clear and conspicuous disclosure has been made in writing to the consumer . . . in a document that consists solely of the disclosure” when seeking to obtain a credit report for employment purposes.
By presenting the two forms at the same time, the required disclosure was neither clear nor conspicuous, the plaintiff alleged. A District Court judge granted summary judgment in favor of the defendant, which the plaintiff appealed to the Ninth Circuit.
Seeking to parse the word “document,” the Appeals Court rejected the plaintiff’s argument, saying “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.’ “
