Recently, the Ninth Circuit in Gilberg v. Cal. Check Cashing Stores, LLC, held the FCRA’s “standalone document” and “clear and conspicuous” requirement means the FCRA disclosure, even if electronic, must be a separate form that cannot include any “extraneous information” (for example, including a liability release in a FCRA disclosure and an at-will employment disclaimer are prohibited). It also clarified that multi-state disclosure forms, containing disclosures from multiple states, are not compliant.
California employers who conduct pre-employment background checks, even through third party vendors, must provide applicants with at least two separate standalone forms providing disclosure and consent under Fair Credit Reporting Act, and separately, disclosure and consent under California’s Investigative Consumer Reporting Agencies Act.
We recommend that employers have their FCRA disclosure forms reviewed by experienced counsel to confirm that they include FCRA-required disclosure and authorization language only and confirm their FCRA disclosure forms are in plain language that can be comprehended by the reasonable person. In examining their disclosure and authorization forms, employers should also confirm that they are compliant with state and local laws requiring additional disclosures/notices beyond the FCRA (e.g. California and San Francisco).