By Richard A. Roth
The Supreme Court has rejected a request by a prospective employer that it review whether combining a disclosure required by the Fair Credit Reporting Act and a job applicant’s waiver in the same document gave the applicant standing to sue under Article III of the Constitution. According to the U.S. Court of Appeals for the Ninth Circuit, the applicant would have suffered an injury in fact due to the employer’s failure to put the waiver in a separate document (Syed v. M-I, LLC).
The FCRA requires an employer that wants to look at a job applicant’s consumer report to disclose that intent in advance in a document that contains nothing but the disclosure. The sole statutory exception to the separate document requirement is that the employer may include a place for the applicant to give his consent on the same document. However, the employer added to the document a waiver of the applicant’s right to sue for any FCRA violations.
Concrete injury. According to the Ninth Circuit, the applicant had described more than a “bare procedural violation” of the FCRA. The requirement that a job applicant affirmatively consent to allowing an employer to review his consumer report created a right to privacy, the court said, and depriving an applicant of a meaningful ability to permit, or refuse to permit, the use of his consumer report violated that right.
The appeal was filed as M-I, LLC v. Syed (No. 16-1524).
Job applicant’s appeal. However, a petition for certiorari filed by a job applicant on Oct. 30, 2017, raises precisely the same issue. In Groshek v. Time Warner, the applicant asks the Court to review whether two employers’ inclusion of liability releases in the FCRA disclosure documents created an injury in fact. Contrary to the Ninth Circuit, the U.S. Court of Appeals for the Seventh Circuit decided there was no concrete injury.
According to the Seventh Circuit, the goal of the FCRA disclosure provision is to ensure that job applicants do not unknowingly consent to an employer’s use of a consumer report. An employer’s addition of extraneous material, such as a waiver of liability, would not create a concrete injury as long as it did not confuse the applicant about his rights (see Groshek v. Time Warner).
Syed distinguished. The Seventh Circuit considered but rejected the Ninth Circuit’s opinion in Syed. According to the Seventh Circuit, the two cases were different because, unlike Syed, Groshek conceded that he had not been confused about his right to prevent the employers from reviewing his consumer report.
The appeal was filed as Groshek v. Time Warner (No. 17-688).
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