Solely the Disclosure Under FCRA

On 04/29/2020, the United States Court of Appeals for the Ninth Circuit had come to a decision on the case of LUNA V. HANSEN & ADKINS AUTO TRANSPORT, a class action complaint concerning a violation of the Fair Credit Reporting Act (FCRA). 

As FCRA litigation continues to increase against employers, this case is worth a read. 

Defendant Hansen & Adkins is a motor carrier licensed by the DOT that transports cars via car carriers hauled by commercial trucks. Hansen & Adkins employs truck drivers and support staff who are subjected to employment background investigations. 

The defendant’s disclosure and authorization forms included a release of liability, notices, waivers, and agreements. 

Luna, the plaintiff who applied for a job with the defendant, gave authorization for the defendant to retrieve safety history, obtain driving records, conduct drug tests, and run background checks. 

The plaintiff argues the defendant violated FCRA requirements by including the disclosure with other application materials, thus willfully disregarding the FCRA’s requirement for a “clear and conspicuous disclosure made in writing to the consumer...in a document report that consists solely of the disclosure...”. 

The 9th Circuit's ruling upheld the defense, Circuit Judges M. Margaret McKeown, Jerome Farris, and Barrington D. Parker, Jr. concluded that the defendant’s disclosure and authorization forms were, in fact, clear and conspicuous for the reasons that the authorization was presented as a separate multi-page document with notices, waivers, and agreements. 

In fact, the disclosure was presented on a single page with only the employer's logo and signature line.  It was further concluded by Circuit Judge McKeown, that the plaintiff's argument “stretches the statute’s requirements” and there is no authority suggesting a “disclosure must be distinct in time.”

What does your Disclosure form and Authorization form look like?  Are they separate?  Are they clear and conspicuous?

Contact us to learn more.

Court Ruling Opinion

Written by Michelle Pyan