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ARTICLE · 04 JUNE 2020

Ninth Circuit Issues Two (Mostly) Pro-Employer Background Check Decisions

Ogletree, Deakins, Nash, Smoak & Stewart
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he Ninth Circuit recently issued two mostly pro-employer federal Fair Credit Reporting Act (FCRA) background check decisions that held:

United StatesEmployment and HR
  • background check disclosures may contain some concise explanatory language, but there is a limit to what is explanatory and what is unlawfully extraneous;
  • background check disclosures may be presented at the same time as other materials, including application materials, as long as the background check disclosures are on a separate form;
  • language in a separate authorization form has no impact on the disclosure form's compliance with the FCRA standalone/ "consists solely" requirement; and
  • the FCRA does not mandate that the pre-adverse action letter include an express request to the applicant/employee to contact the employer directly to dispute the accuracy of the information in the background check report.

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