The Fair Credit Reporting Act requires that employers provide prospective applicants with a disclosure before obtaining a pre-employment background check from a consumer reporting agency.  This disclosure must be in a single document that consists “solely of the disclosure” that a consumer report may be obtained for employment purposes.  In Burnthorne-Martinez v. Sephora USA, Inc., the District Court for the Northern District of California recently struggled with what it means to be a single document in the digital age.

Specifically, the defendants’ disclosure to the plaintiff appeared on a single webpage.  The first section of the webpage was entitled “Certification and Release,” while the second section was entitled “Background Release Form Disclosure and Consent.”  The plaintiff argued that the webpage comprises a single document, and the inclusion of a “Certification and Release” section on the same webpage as the background check disclosure ran afoul of the FCRA’s “solely of the disclosure requirement.

In its analysis, the Court found that neither the plaintiff nor the defendant offered any authority for what constitutes a “single document” “for the purposes of web-based applications.”  In the absence of any authority, the Court declined to make a legal finding at the pleadings stage of the case.  According to the Court, the fact that the webpage includes a single “submit” button supports the conclusion that it constitutes a “single document.”  On the other hand, however, the defendant included two separate sections on that webpage, which the Court believed counseled in favor of compliance.  Ultimately, the Court was not prepared to make a legal finding “against this backdrop.”

Although the Court did not reach a decision on the “solely of the disclosure” requirement, the decision should serve as a reminder to employers to verify that any digital background check disclosure forms that they use comply with the FCRA. 

Troutman Sanders’ employment background screening team has significant experience advising clients on compliance with the FCRA’s background check disclosure provision.