Last week, the 9th Circuit issued an opinion that goes into some detail about what may – and what may not – be included in a “disclosure.” The Court partially revived a job applicant’s claims against Fred Meyer, a grocery chain. The appeals court overturned the district court’s finding that the plaintiff, Daniel Walker, failed to adequately claim that the grocery chain violated the FCRA’s requirement that job applicants receive a disclosure where the applicant consents to a background check.
The three-judge panel reviewed the case in light of a Jan. 2019 9th Circuit decision in Gilberg v. California Check Cashing Stores, which was decided after the district court ruled in Walker.
The 9th Circuit looked at two paragraphs in the disclosure and found that “while we understand Fred Meyer’s reason for providing [additional] information to job applicants, we hold that it should have been provided in a separate document, because the information cannot reasonably be deemed part of a ‘disclosure … that a consumer report will be obtained for employment purposes.’” The information Fred Meyer included is likely helpful and informative to consumers but still beyond the bounds of the FCRA, the court ruled. The two paragraphs at hand discussed an applicant’s right to inspect the information the background check company (the CRA) had gathered on the applicant and the right of the applicant to receive a disclosure of interview information.
The plaintiff also contested the pre-adverse action notice, asserting that it should have advised him of his right to speak directly with the employer about the negative items in his consumer report. The court rejected that argument: “We also hold that the right provided by the FCRA to dispute inaccurate information in a consumer report does not require employers to provide job applicants or employees with an opportunity to discuss their consumer reports directly with the employer. See id. § 1681b(b)(3)(A). Instead, the FCRA requires that an employer provide, in a pre-adverse action notice to the consumer, a description of the consumer’s right to dispute with a consumer reporting agency the completeness or accuracy of any item of information contained in the consumer’s file at the consumer reporting agency. See id. §§ 1681g(c)(1)(B)(iii), 1681i.”
Eric J. Ellman is Senior Vice President for Public Policy and Legal Affairs at the Consumer Data Industry Association (CDIA) in Washington, DC. He also served for eight months as Interim President and CEO of the Association. More