The Fair Credit Reporting Act (FCRA) requires employers who obtain a consumer report on a job applicant to provide the applicant with a “clear and conspicuous disclosure” that they may obtain such a report (the “clear and conspicuous” requirement) “in a document that consists solely of the disclosure” (the “standalone document” requirement) before procuring the report. Because neither of these requirements are defined in the statute, they have been the subject of almost constant litigation in recent years. Most notably, the 9th Circuit has led the way in finding that an employer’s inclusion of a liability waiver in its disclosure form violates the standalone requirement. Now, in Gilberg v. California Check Cashing Stores, LLC, a panel of the 9th Circuit Court of Appeals has held that an employer’s inclusion of state law mandated requirements in the disclosure form provided to job applicants violates the standalone document requirement despite the fact that they were included in the form in an effort to assist the applicants in understanding all of their rights as it related to the background screen being obtained on them. In short, the panel was not moved by the employer’s argument that its additional disclosure of the applicable state laws “furthers rather than undermines FCRA’s purpose.” To the contrary, the panel held that “the presence of this extraneous information is as likely to confuse as it is to inform” and therefore, it does not further FCRA’s purpose. Instead, the panel noted that the only exception to the standalone document requirement is the one in the statute itself that permits the disclosure and authorization to be combined into a single document.
Many thanks to Arslan Sheikh for his assistance in preparing this post.
In a decision issued on April 2, 2018 the Supreme Court of the United States held in Encino Motorcars, LLC v. Navarro that service advisors at an auto dealership are exempt from the Fair Labor Standards Act’s (FLSA) overtime pay requirement. Most importantly, the Court also rejected the 9th Circuit’s holding and Department of Labor policy that FLSA exemptions should be construed narrowly. Instead, courts should apply a fairness test to determine whether a particular job is covered under the exempt classifications of the act. As a result, employers should be aware of this recent decision and consider how it may apply to them.
Continue Reading Recent Supreme Court decision holds that FLSA exemptions are to be construed fairly
The U.S. Court of Appeals for the Ninth Circuit recently announced it will review the February 2007 decision to certify a class that potentially includes 1.5 million current and former female employees allegedly underpaid and denied promotion opportunities on the basis of their sex.
Continue Reading Ninth Circuit to Hear Argument on Class Certification Decision in Wal-Mart Class Case