Just a few weeks ago, the Ninth Circuit Court of Appeals issued a ruling in Gilberg v. California Check Cashing Stores that may have a significant impact on whether an Employee Screening Disclosure and Authorization (DA) form is compliant.
Although the FCRA (Fair Credit Reporting Act – the federal law that regulates employee screening) has not changed, case law evolves over time. Further, predatory plaintiff attorneys seek to exploit recent (and other) case law rulings that help them file new class action law suits for technical violations of FCRA.
The FCRA has always required a clear and conspicuous DA, whose sole purpose is the background check, separate and distinct from other documents – including particularly the general employment application. However, additional state-mandated disclosures, when included in the DA, were historically viewed as being compliant.
This Ninth Circuit Court ruling may change that. Thus, it is advisable to review your DA. Specific state-mandated disclosures should be placed in a separate and distinct document. Even if your business is not subject to the Ninth Circuit Court, the conservative approach would be to detach state disclosures from the federal DA, as the Ninth Court often leads the path that other courts will follow.
Posted by: Rudy Troisi, President and CEO, Reliable Background Screening
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