In a case of first impression, the U.S. Court of Appeals for the Ninth Circuit has ruled that an employer willfully violated the federal Fair Credit Reporting Act (FCRA) because the employer’s required background check disclosure form contained extraneous language, namely a waiver of any liability arising out of the background check process.

The decision by the appeals court in Syed v. M-I, LLC, No. 14-17186 (Jan. 20, 2017), concludes that when an employer provides a disclosure to an applicant as required under the FCRA, informing the applicant that a background check may be obtained for employment purposes, the document containing the disclosure cannot contain extraneous language.

The Syed ruling drives home the point that plaintiffs’ lawyers increasingly are bringing class-based FCRA lawsuits because they need only show technical noncompliance with FCRA-required disclosure and authorization documents to tee up large monetary payouts, even though the plaintiffs may never need to show or prove that they suffered any actual harm.

A copy of the Ninth Circuit’s Syed decision is available here.

Members of the Equal Employment Advisory Council (EEAC) can read more here.