Employers should have background check forms reviewed immediately, especially in Ninth Circuit

In a surprising decision, the Ninth Circuit has issued a ruling that an employer violates both federal and California state background check laws when it uses relatively common language.

The federal law that governs background checks is the Fair Credit Reporting Act (FCRA). Its California equivalent is its Investigative Consumer Reporting Agencies Act (ICRAA). Both require certain content be included in the paperwork that goes to and must be signed by the candidate. Both state that nothing else may be set forth in those forms. This is called the “standalone requirement.” In other words, the requirement is that the background check forms be standalone documents; they cannot be part of a job application or the like.

In this case, the forms stated the information required by FCRA and ICRAA. Then they added similar language for four other states, with headers setting off the state-specific language like “Minnesota and Oklahoma applicants or employees only. Check this box if ….” and “New York applicants or employees only. By signing below, you also acknowledge ….”

The Ninth Circuit held those additional state-specific disclosures violated FCRA and ICRAA because they had nothing to do with the particular individual being asked to fill out the form (an applicant for employment, in this case) who lived and was applying to work in California. The Ninth Circuit said that this seemingly clear language was nonetheless “extraneous” and “as likely to confuse as it is to inform.” Therefore the Ninth Circuit held it violated both FCRA and ICRAA’s standalone requirement. 

Source: Gilberg v. California Check Cashing Stores, LLC, case no. 17-16263 (9th Cir. 1/29/19).