The first quarter of the year is a good time to ensure that all your employment disclosures are up to date and in compliance. Most notable is that
a prospective employer should not include a waiver of liability on the same document where the employer provides the required disclosure to a potential employee.
” 1. A Waiver Must Be Printed on a Document Separate From an Applicant’s Credit Report Disclosure
In Syed v. M-I, LLC, 853 F.3d 492 (9th Cir. 2017), the defendant provided plaintiff job applicant Syed a document labeled “Pre-employment Disclosure Release.” The Disclosure Release informed Syed that his credit history and other information could be collected and used as a basis for the employment decision, authorized M-I to procure Syed’s consumer report, and stipulated that, by signing the document, Syed was waiving his rights to sue M-I and its agents for violations of the FCRA. The FCRA states that an employer cannot obtain an applicant’s credit report unless “a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes…” (emphasis added).
Syed sued and sought punitive and statutory damages for M-I’s “willful” violation of the FCRA. The Ninth Circuit held that, “[i]n light of the clear statutory language that the disclosure document must consist ‘solely’ of the disclosure, a prospective employer’s violation of the FCRA is ‘willful’ when the employer includes terms in addition to the disclosure, such as the liability waiver here, before procuring a consumer report or causing one to be procured.”