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What Must Be Disclosed Before Employment Background Check

On Behalf of | Jul 10, 2018 | Consumer Protection

When it comes to applying for a job, the application process is no longer as simple as filling out paperwork and going for an interview.  With the availability of consumer data and the internet, employers now can conduct a more extensive background check when you apply for a job.  Gone are the days of being able to just appear face to face and let an employer know you are the right person for the job.

Know Your Rights

Under the Fair Credit Reporting Act (“FCRA”), you have rights that protect your information, whether you are applying for a loan, insurance, or a job.  It is important to know your rights prior to allowing an employer to delve into your personal information.  The FCRA is clear that an employer must provide you notice during the application process that he or she plans to access a report on you and obtain written consent from you prior to doing so.  Furthermore, the FCRA requires employers to make sure this disclosure or request is “clear and conspicuous” to the consumer applicant.  This is generally referred to as the “stand alone” requirement.  So what exactly does “clear and conspicuous” mean?  Courts have heard cases to determine exactly how to interpret this statutory language.

“Clear and Conspicuous”

When it comes to interpreting the “clear and conspicuous” language of the statute, it is important to remember that the purpose of the inclusion of this language in the statute was to protect consumers.  In Syed v. M-I, Ltd. Liab. Co., the Ninth Circuit held that including a waiver of the defendant’s liability in the same document as the FCRA disclosure violated the FCRA’s “stand alone” requirement.  In Syed, the plaintiff argued that he was confused by excess language included in the document and did not understand what he was agreeing to.  Likewise, in Poinsignon v. Imperva, Inc., a Ninth Circuit District Court held that a disclosure that included links to a privacy policy also violated the FCRA.  The court emphasized the importance of there being nothing extra included in the request to access the applicant’s credit report and that stand alone means stand alone.

“Stand Alone”

The “stand alone” requirement prohibits the disclosure and authorization forms presented to an applicant or employee from being combined with other things, like an employment application.  In fact, the FCRA provides that the disclosure must be made in writing in a document that consists “solely” of the disclosure.  15 U.S.C. § 1681b(b)(2)(A)(i). This means a disclosure that complies with the FCRA cannot contain ANY extraneous information.

If you believe your rights have been violated when it comes to a background check, contact us at SmithMarco, P.C. for a free case review.