In Just v. Target Corporation, the plaintiff alleged that Target willfully violated the Fair Credit Reporting Act by providing him with a background check disclosure form that did not consist “solely of the disclosure” that a background check would be obtained.  In a victory for employers, the court dismissed the plaintiff’s allegations at the pleadings stage because it found that the plaintiff could not prove a willful violation of the FCRA.

The FCRA requires an employer to provide an applicant, before procuring a background check, with a clear and conspicuous disclosure that a background check may be obtained for employment purposes.  This form must consist “solely of the disclosure.”   Most of the litigation in this area focuses on this “solely of the disclosure” requirement.  The plaintiff in Just alleged that Target violated this provision because its disclosure form: (1) included two sentences that could mislead a job applicant; (2) included statements regarding the ability to dispute the accuracy of a consumer report; (3) included a discussion of the employment relationship; and (4) included state law disclosures.

The court did not address whether Target’s disclosure form technically violated the FCRA.  It did conclude, however, that the law regarding the “solely of the disclosure” requirement is sufficiently ambiguous that Target’s disclosure could not be classified as objectively unreasonable.  In its decision, the court surveyed the state of FCRA employment background check disclosure law.  In this survey, it noted that the “solely of the disclosure” requirement often does not prevent an employer from including information related to the disclosure, such as a background check authorization and a description about the background check to be obtained, although it may preclude a liability waiver.

The court ultimately concluded that Target’s disclosure form was not a willful violation of the FCRA.  The court’s holding was based on the fact that there is minimal court of appeals guidance on the statute’s interpretation, minimal Federal Trade Commission guidance on the “solely of the disclosure” requirement, and the court’s conclusion that the “text of the statute itself is less than clear.”

The Just decision is a bright spot for employers.  The court declined to find a willful violation of the FCRA where the disclosure at issue undoubtedly informed the applicant that a background check would be procured.  The fact that the case was even brought, however, should serve as another reminder to employers to revisit whether their background check disclosure forms are FCRA-compliant.

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