California’s Fourth District Court of Appeals has reinstated a putative class action against a major book retailer choosing to let a jury decide whether or not the employer willfully violated the Fair Credit Reporting Act by including extraneous language in its required disclosure for pre-hire background checks. This contrasts with several recent federal rulings which have dismissed similar claims regarding extraneous language, finding that it generally fails to cause concrete harm.
The Fourth District’s panel of three justices unanimously chose to revive the case reversing the ruling by the trial court, which agreed with the bookseller that no reasonable jury could conclude that the additional language included in the FCRA’s required standalone disclosure was willful. However, the Fourth District panel disagreed, finding that a reasonable jury could conclude that the alleged violations were willful based upon the defendant’s violation of the FCRA’s unambiguous provision requiring employers to provide a clear and conspicuous disclosure “in a document that consists solely of the disclosure.”
On the defendant’s disclosure form, the standard FCRA disclosure asks applicants for permission to run a background check and provides them information about the check and their rights as contained in one paragraph. Learn More
However, the document also included a second paragraph which stated in short that the information on the form should not be construed as legal advice or counsel, and employers should check with their own counsel concerning any legal compliance issues.
According to the defendant, this additional legal information intended for employers was unintentionally included when it was updating its procedures to shift more duties between its own personnel and a third-party provider of background checks when its own legal counsel went on leave. The third-party provider supplied the model form with the additional language, which was then included on the defendant’s notice for two years until the employer changed screening providers.
According to the plaintiff, who was a jobseeker during the two years in which the allegedly flawed disclosure was used, the knowing inclusion of “extraneous and confusing language” constituted a willful violation of the FCRA’s requirements for a standalone disclosure.
The Fourth District panel agreed with the plaintiff’s argument citing the U.S. Court of Appeals for the Ninth Circuit’s opinion in Syed v. M-I, LLC, which found that the FCRA in clear and unambiguous terms prohibits the addition of material in addition to that required by the FCRA. As a result, the Panel reversed the trial court’s ruling and remanded it for further proceedings.
Did you know that Pre-employ offers resources to help employers stay compliant and incorporate fair chance hiring practices? Learn more by downloading our free resource guide on 5 Tips To Avoid FCRA Non-Compliance