by Rod M. Fliegel - Littler

On March 20, 2020, the Ninth Circuit issued its third opinion on the question of when an employer’s background check disclosure satisfies the so-called “standalone” disclosure requirement in the Fair Credit Reporting Act (FCRA).1 The new opinion, like the two prior ones (Syed and Gilberg), reads the text of the FCRA literally, but also provides some practical guidance for drafting such disclosures. Addressing a separate obligation that employers have to provide “pre-adverse” action notice when relying on background reports, the Ninth Circuit rejected the plaintiff’s argument that the FCRA affords a right to discuss the report directly with the employer.