On April 19, 2022, a California court of appeal ruled against the defendant in a class action lawsuit filed against an employer for allegedly “willfully” violating the Fair Credit Reporting Act (FCRA) requirement that employers provide job applicants with a “clear and conspicuous disclosure” in a stand-alone document when obtaining authorization for background checks.
The plaintiff, who applied to work for the defendant in 2018, filed a putative class action lawsuit against the defendant, an American bookseller with the most retail outlets in the United States, after the defendant’s consumer reporting agency (CRA) emailed the plaintiff a link to a consumer report disclosure that requested her authorization to procure a background check.
Employers may violate the FCRA by providing job applicants with a disclosure that contains extraneous language unrelated to background checks. In this case, the defendant employer inadvertently used an updated disclosure obtained from its CRA that was provided as a sample and included a footnote meant for the employer to read, not any job applicants. The footnote read:
Please note: Nothing contained herein should be construed as legal advice or guidance. Employers should consult their own counsel about their compliance responsibilities under the FCRA and applicable state law. [CRA] expressly disclaims any warranties or responsibility or damages associated with or arising out of information provided herein.
Even though the employer inadvertently provided the sample disclosure to job applicants without first deleting the footnote, the class action lawsuit filed by the job applicant claimed the footnote was impermissible extraneous information and that the defendant failed to provide a stand-alone disclosure as required under FCRA section § 1681b(b)(2)(A)(i).
The employer filed a motion for summary judgment, arguing that no reasonable jury could find its alleged FCRA violation was willful and asserted it included the extraneous information in its disclosure due to an inadvertent drafting error. A trial court agreed and granted the company’s motion for summary judgment and entered judgment in the company’s favor.
However, unlike the trial court, the California court of appeal reversed summary judgment for the employer and concluded that a reasonable jury could find that defendant’s alleged FCRA violation was willful because it violated an unambiguous provision of the FCRA, the “clear and conspicuous disclosure” in a stand-alone document when obtaining authorization.
“At least one of the company’s employees was aware of the extraneous information in the disclosure before the disclosure was displayed to job applicants, the company may not have adequately trained its employees on FCRA compliance, and/or the company may not have had a monitoring system in place to ensure its disclosure complied with the FCRA,” the court found.
“Because a reasonable jury could find that (the defendant’s) alleged FCRA violation was willful, we reverse the judgment and remand the matter with directions that the trial court vacate its order granting the motion for summary judgment and enter a new order denying the motion for summary judgment,” the court of appeal concluded in its ruling.
The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq is U.S. Federal Government legislation enacted to promote the accuracy, fairness, and privacy of consumer information contained in the files of CRAs and was intended to shield consumers from the willful and/or negligent inclusion of erroneous data in their consumer/credit reports.
ClearStar is a leading HR-technology company specializing in background checks and medical screening. ClearStar offers pre-employment screening services that help employers comply with federal, state, and local laws that regulate background checks in the United States so they may avoid costly and damaging litigation. To learn more about ClearStar, contact us today.
NOTE: ClearStar reminds readers that allegations made in class action lawsuits are not proof a business or individual violated any law, rule, or regulation since they are in the pleading stage with no factual adjudications yet.