In Robrinzine v. Big Lots Stores, Inc., the plaintiff brought what has become a familiar class action claim against employers under the Fair Credit Reporting Act (“FCRA”).  According to the complaint, when Robrinzine applied for employment with Big Lots, she received a disclosure form informing her that a background check would be procured.  She claims, however, that the disclosure form did not “consist solely of the disclosure that a consumer report may be obtained,” as the FCRA requires.  Specifically, she argued that the form runs afoul of the FCRA because it included an “implied liability waiver,” a “full page of state-specific notices,” and “information on how background information will be gathered.” 

Big Lots filed a motion to dismiss, arguing that the disclosure complied with the FCRA on its face.  The Court disagreed.  According to the Court, the FCRA’s “solely of the disclosure” language requires the form to include “only the disclosure,” “to the exclusion of all else.”  The Court concluded that a background check disclosure form plausibly violates the FCRA when it includes an “implied liability waiver, specific information regarding how consumer information will be collected, and over a page and a half of state-specific exceptions that are inapplicable to the plaintiff.” 

In the defendant’s motion to dismiss, it also argued that even if the plaintiff could prove a technical violation of the FCRA, she certainly could not prove that the defendant violated the FCRA willfully.  The Court disagreed once again.  According to the Court, the plaintiff’s allegations that the defendant was aware of the FCRA’s requirements and willfully violated them were sufficient to survive the defendant’s motion to dismiss as to willfulness. 

The Robrinzine decision serves as another example of a court following a strict interpretation of the “solely of the disclosure requirement,” even when there is no dispute that the applicant is aware a background check will be obtained.  The decision should serve as a reminder to employers to revisit their background check disclosures.   

Troutman Sanders LLP has substantial experience in counseling employers on disclosure form documents under the FCRA, as well as experience in litigating these class and individual claims.  We will continue to monitor this and similar cases.