Recent Ninth Circuit Court Ruling Should Push Employers to Work with 3rd Party Background Screening Agencies; Opines CriminalBackgroundRecords.com

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A recent ruling by the Ninth Circuit challenges the use and format of disclosure forms utilized as a part of pre-employment background screening and, subsequently, should immediately alert all hiring managers to work with a third-party background screening agency in order to stay fully compliant with law. Adam Almeida, President and CEO of CriminalBackgroundRecords.com opines: "The Ninth Circuit ruling will push companies and organizations to review disclosure documents in order to avoid potential lawsuit and/or costly fines."

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What the Gilberg case shows is all disclosures must be consistent and clearly written in plain language. Further, disclosures must be consistent with all laws AND all jurisdictions.

The Ninth Circuit recently ruled on Gilberg v California Check Cashing Stores, LLC (913 F.3d 1169 (9TH Cir. 2019) finding that the use of a single disclosure form is in violation of law thus creating a significant change for hiring managers and hiring policy. Adam Almeida, President and CEO of CriminalBackgroundRecords.com states: "This ruling should immediately alert hiring managers to work with a well-qualified third-party pre-employment background screening agency to remain compliant with law."

Across the country the Fair Credit Reporting Act (FCRA) protects applicants from fraudulent acquisition of consumer reports, such as credit reports, criminal history reports, liens & judgments, to name a few. In the state of California there is an additional disclosure requirement with the Investigative Consumer Reporting Agencies Act (ICRAA). (1)

Almeida states: "It is the responsibility of the employer to get the appropriate disclosure documents signed by the applicant prior to conducting a pre-employment background check."

From DWT.com (Feb. 12, 19):

Employers who use third party vendors to perform background checks regarding job applicants and current employees know that they must comply with the federal Fair Credit Reporting Act’s technical disclosure and authorization requirements. Failure to do so subjects employers to potential liability of up to $1000 per discrete violation, plus punitive damages and attorneys’ fees. (2)

The Ninth Circuit found that the documents utilized as part of disclosure were inadequate.

Almeida states: "Disclosure documents must be precise, clear, and fully understandable; the language must be clear for all to understand."

From DWT.com (Feb. 12, 19):

For example, the California disclosure and authorization form in Gilberg expressly applied to “California applicants or employees only.” The Court found that the employer’s inclusion of state-disclosures and authorizations violated the FCRA’s “consists solely of the disclosure” requirement. The Court further held that, because the language regarding the scope of the background check was not clear (due to typos and poor grammar), the employer’s FCRA disclosure form further violated the “clear and conspicuous” requirement. (2)

Almeida concludes: "What the Gilberg case shows is all disclosures must be consistent and clearly written in plain language. Further, disclosures must be consistent with all laws AND all jurisdictions. Ultimately, failure to fulfill the requirements of the FCRA and, in California, ICRAA could result in penalty. A best practice for employers is to work with a well-qualified third-party pre-employment background screening agency."

CriminalBackgroundRecords.com is a third-party background screening agency with highly trained operators well versed in the needs and requirements of companies and organizations large and small utilizing public records, such as criminal background records, as part of a hiring process. Assisting companies in maintaining full compliance under the law is a central tenet of all client relationships with CriminalBackgroundRecords.com.

Notes:
(1) jdsupra.com/legalnews/nothing-more-nothing-less-ninth-circuit-74134/
(2) dwt.com/Ninth-Circuit-Significantly-Restricts-Permissible-Contents-of-FCRA-Disclosure-Forms--Gilberg-v-California-Check-Cashing-Stores-LLC-02-12-2019/
(3) ibid.

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