Background Screening Editing and Proofreading Services

One document in a hiring file has a rule about what may not be on it. Under 15 U.S.C. 1681b(b)(2)(A), a person may not procure a consumer report for employment purposes unless a clear and conspicuous written disclosure has been made to the consumer beforehand.¹ Clause (i) states both what that disclosure says and where it goes: "in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes."¹ Clause (ii) permits the consumer's written authorization to be "made on the document referred to in clause (i)."¹ Subparagraph (B) supplies a different procedure where the application is made "by mail, telephone, computer, or other similar means," and subparagraph (C) limits that alternative to certain transportation positions.¹

What two appellate decisions excluded

In Syed v. M-I, LLC, No. 14-17186, filed January 20, 2017 and amended on March 20, 2017, the form combined the disclosure with a waiver.² The Ninth Circuit held that "a prospective employer violates Section 1681b(b)(2)(A) when it procures a job applicant's consumer report after including a liability waiver in the same document as the statutorily mandated disclosure."² Reading the statutory word, the panel wrote that the ordinary meaning of "solely" is "[a]lone; singly" or "[e]ntirely; exclusively."²

Gilberg v. California Check Cashing Stores, LLC, No. 17-16263, followed on January 29, 2019 in the same circuit.³ There the extra material was a set of disclosures keyed to the laws of several states, California among them.³ The court held that "a prospective employer violates FCRA's standalone document requirement by including extraneous information relating to various state disclosure requirements in that disclosure."³

Clear and conspicuous are two tests, and the form split them

The statute asks for a disclosure that is clear and conspicuous, and Gilberg took the two words separately. On conspicuousness the form passed. The panel wrote that "Although the font is small and cramped (we think inadvisably so), it is legible," and held the disclosure conspicuous.³

On clarity it failed. The panel found that "CheckSmart's disclosure form is not reasonably understandable for two distinct reasons."³ The first was that the form "contains language that a reasonable person would not understand."³ The second was that combining federal and state disclosures would confuse a reasonable reader.³

Working through the first reason, the panel read the form's sentences one at a time. Of one of them it wrote: "The second half of the sentence, following the semicolon, lacks a subject and is incomplete."³ A form can be legible and still fail the other half of the test, and this one failed on its sentences.

The letters that come afterward

Once a report is in hand, the writing obligations continue. Under 15 U.S.C. 1681b(b)(3)(A), and subject to the exception in subparagraph (B), the duty falls before an adverse action based on the report.¹ The person intending to act provides the consumer "a copy of the report" and a written description of the consumer's rights.¹ The statute specifies that description as the one "prescribed by the Bureau under section 1681g(c)(3) of this title."¹ The FTC repeats the step in its own guidance for employers.⁴

That cross-reference points at a paragraph that is not there. Subsection (c) of 1681g contains two paragraphs, a Commission summary of rights required and a summary of rights required to be included with agency disclosures.⁵ There is no (c)(3), so the citation has nowhere to land. Paragraph (c)(1)(A) reads "The Commission shall prepare a model summary of the rights of consumers under this subchapter."⁵ The codifiers have attached a note to the word Commission there: "So in original. Probably should be 'Bureau'."⁵

The notice that follows the decision has its own contents. Section 1681m(a) has the person taking the action name the consumer reporting agency that furnished the report, with its address and telephone number.⁶ The same subsection calls for a statement that the agency "did not make the decision to take the adverse action."⁶ That statement continues, saying the agency "is unable to provide the consumer the specific reasons why the adverse action was taken."⁶

Guidance issued jointly by the EEOC and the FTC in February 2014 puts that sentence in shorter words. It tells employers to say that the company selling the report "didn't make the hiring decision, and can't give specific reasons for it."⁷ The statute also requires notice of the right to dispute the report and to obtain a free copy, with the sixty-day window for that copy stated in the notice.⁶

The limits of the reading we do

Whether to hire, whether a record is disqualifying, and whether a particular form satisfies the statute are questions for the employer and its counsel. We are not a law firm and we give no legal advice. Those decisions arrive settled, written into the draft that reaches us.

The questions an editor can answer are different ones. One is whether every sentence in the disclosure has a subject and a verb. Another is whether one word does the same work in the disclosure, the authorization, and the letter. A third is whether a citation in a template points at a provision that exists. Every file a client sends is handled in confidence.

The CheckSmart form was read in the Ninth Circuit clause by clause, with the semicolon in one sentence written into a published opinion. That is not how the form was read in the office that drafted it, or by the applicants who signed it.