EMPLOYMENT BACKGROUND CHECKS
All employment screening services including pre-employment drug screening and pre-employment criminal record background checks are available in Alaska.
Recent ruling concerning release forms by ninth circuit.
Single combined state and Federal release forms no longer adequate.
Employers conducting background checks in Alaska, Arizona, Idaho, Montana Nevada, Oregon and Washington State should be aware of this ruling and take steps to comply with this ruling.
In Gilberg v. Cal. Check Cashing Stores, LLC, No. 17-16263, 2019 WL 347027 (Ninth Cir. Jan. 29, 2019), the Ninth Circuit held a single form combining nearly identical federal and state disclosures violates both federal and state laws.
Employers who conduct pre-employment background checks must now provide applicants with two separate standalone forms: (1) disclosure and consent under Fair Credit Reporting Act; and (2) disclosure and consent under California’s Investigative Consumer Reporting Agencies Act (or other applicable state law).
CLEAR AND CONSPICUOUS LANGUAGE
By including release/authorization language related to the required state form, or any other required disclosure or release, the court also ruled that the combination form violated the FCRA because it contained “extraneous information and was as likely to confuse as it was to inform.”
The court also found that the CheckSmart Financial LLC, release form also contained language that a reasonable person would not understand.
Specifically, the court cited this sentence: “The scope of this notice and authorization is all-encompassing; however, allowing CheckSmart Financial, LLC to obtain from any outside organization all manner of consumer reports and investigative consumer reports now and, if you are hired, throughout the course of your employment to the extent permitted by law.”
First, the court found that this sentence did not explain how the notice was all-encompassing.
Moreover, it did not disclose the impact that authorization would have on a prospective employee’s rights.
In addition, the court cited the portion of the sentence after the semicolon.
It found that it was incomplete, lacked a subject and that the drafting may have caused confusion as to the possible limits of the authorization
What should employers do?