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Background Checks and Employment Class Actions: FCRA Cases, Disclosure Forms, State and Federal Litigation

Recording of a 90-minute CLE webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, December 17, 2020

Recorded event now available

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This CLE course will provide guidance to employment counsel regarding class action litigation brought under the Fair Credit Reporting Act (FCRA) as these cases are on the rise, particularly in California, after the U.S. Court of Appeals for the Ninth Circuit issued a 2017 decision applying a hypertechnical approach to the FCRA's disclosure requirements. The panel will provide best practices on utilizing background checks as part of the hiring process while avoiding lawsuits for noncompliance with disclosure or adverse action requirements. Plaintiffs' firms will also be advised on the potential statutory and actual damages, punitive damages, costs, and attorneys' fees that can be acquired from these types of cases.


The Ninth Circuit recently issued two mostly pro-employer federal FCRA background check decisions in Walker v. Fred Meyer Inc. and Luna v. Hansen & Adkins Transport Inc. that create requirements for background check disclosures.

The FCRA requires employers who obtain a consumer report on job applicants to disclose that process "in a document that consists solely of the disclosure." Further, in addition to the standalone requirement, the FCRA and California's FCRA-like disclosure requirements found in the Investigative Consumer Reporting Agencies Act both require the disclosure form to be "clear and conspicuous." According to the court, "clear" under the FCRA means "reasonably understandable" and "conspicuous" means "readily noticeable to the consumer."

The Ninth Circuit cases also clarified what is considered adverse action after a background check is conducted, and provided guidance on a reasonable waiting period, as well as how post-adverse action notices must be drafted to be compliant. Employers' counsel must be aware of these standards and the potential penalties that businesses are subject to in the event of a breach. Plaintiff's counsel should be familiar with the many options for potential statutory and actual damages, punitive damages, costs, and attorneys' fees that can be acquired from these types of cases.

State and federal class action litigation on these matters continues to rise, and decisions have created an array of guidance regarding FCRA and background checks.

Listen as our expert panel provides employment counsel with best practices and tips on responding to the guidance in these recent Ninth Circuit FCRA opinions.



  1. FCRA cases
    1. Walker v. Fred Meyer Inc.
    2. Luna v. Hansen & Adkins Transport Inc.
      1. Concise explanatory language
      2. Simultaneous disclosures
      3. Separate authorization form
  2. Disclosure requirements
    1. Standalone requirement
    2. Clear and conspicuous
  3. Adverse action
    1. Disclosure and pre-authorization.
    2. Pre-adverse action letter/copy of report/rights under FCRA
    3. Waiting period
    4. Adverse action letter
  4. Potential penalties for noncompliance
  5. State and federal litigation
    1. Petco
    2. DISH Network
    3. Starbucks


The panel will review these and other key topics:

  • What guidance on FCRA and employment law has been provided in the recent Ninth Circuit cases?
  • What are the disclosure requirements for an FCRA background check?
  • What types of adverse actions are considered under FCRA background checks and what are the steps an employer must take?
  • What is the status of current FCRA cases in state and federal litigation?


Devata, Pamela
Pamela Q. Devata

Seyfarth Shaw

Ms. Devata specializes in all aspects of employment defense including counseling, training, and litigation. She...  |  Read More

Hanson, Cindy
Cindy D. Hanson

Troutman Pepper

Ms. Hanson focuses her practice on complex commercial litigation and class action defense. She has handled hundreds of...  |  Read More

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