If you haven’t put your background disclosure forms through a legal audit recently, you should. While laws and legalese can often be complicated and hard to understand, the regulations on background check disclosure forms require that they are simple and easy to understand. You will also want to make sure that your grammar and punctuation are accurate on your forms, if you don’t want to end up on the losing side of a lawsuit.
In the case of Desiree Gilberg et al. v. California Check Cashing Stores LLC et al, the requirement for disclosure forms to be both clear and conspicuous took center stage. The Ninth Circuit Court affirmed in part and vacated in part an earlier ruling that favored the employer. The part of the previous ruling overturned was about the clarity of the form. The Ninth Circuit found the circuit court’s decision to deem the disclosure form clear was in error.
There are many states and some cities that require specific notices regarding background screening to be provided to applicants/employees, so it seems that including them with the disclosure would be a good idea. However, the FCRA requires that disclosure forms be standalone documents, and the Ninth Circuit Court of Appeals recently ruled that state law notices are “extraneous” information when it comes to disclosure forms. The court also stated that “because the presence of this extraneous information is as likely to confuse as it is to inform, it does not further FCRA's purpose.”
What could be confusing about required state notices? Most states don’t require state specific notices, so when a “reasonable reader” sees a notice addressed to applicants or employees of specific states, they may take that as the rights do not apply to them because they don’t reside in those specified states. For instance, the states of Minnesota and Oklahoma require notices. Someone from Michigan reading those notices may think they don’t have those rights as Michigan is not called out, but that isn’t necessarily the case.
The Ninth court also ruled that the store’s disclosure forms were not “clear”, and that “…the disclosure form contains language that a reasonable person would not understand.” The portion of the form describing the scope of the notice states that it is “all-encompassing” but fails to explain it is all-encompassing. The notice also fails to address the affect on the rights of the applicant/employee.
Grammar aficionados will appreciate that part of the ruling was due to a portion of a sentence that lacked a subject and was incomplete, making it unclear: “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.” What? Yes, grammar does matter!
If you haven’t done so in a while, this would be a good time to review your background forms, policies, and procedures, and make sure you check for proper grammar and punctuation.
Additional ASE Resources
Pre-employment Services - For assistance reviewing your forms or questions regarding your pre-employment practices contact Susan Chance.
Sources: scholar.google.com, Seyfarth.com, law360