## Facts

- Daniel Walker applied for employment with Fred Meyer and received a conditional offer contingent on a background check.
- Fred Meyer provided Walker a five-paragraph document titled “Disclosure Regarding Consumer Reports and Investigative Consumer Reports” stating it might obtain consumer reports for employment purposes.
- The document described the nature and scope of the report, identified the consumer reporting agency (General Information Services, Inc.), and included information about inspecting the agency’s files and obtaining additional disclosures from the agency.
- Walker signed a separate authorization permitting the background check.
- After the consumer reporting agency prepared a report, Fred Meyer declined to hire Walker based on the report.
- Walker filed a putative class action alleging willful violations of the Fair Credit Reporting Act (FCRA), including (1) that the disclosure violated FCRA’s standalone and “clear and conspicuous” requirements and (2) that the pre-adverse-action notice was defective because it did not advise him he could discuss the report with Fred Meyer before the decision.

## Issues

1. Whether an FCRA disclosure under 15 U.S.C. § 1681b(b)(2)(A)(i) violates the “consists solely of the disclosure” requirement by including additional explanatory or procedural information beyond a basic statement that a consumer report may be obtained for employment purposes.
2. Whether 15 U.S.C. § 1681b(b)(3)(A) requires a pre-adverse-action notice to inform an applicant of a right to discuss the consumer report directly with the employer before adverse action is taken.

## Decision

- The Ninth Circuit affirmed in part, reversed in part, and remanded.
- The court held the disclosure violated § 1681b(b)(2)(A)(i) to the extent it included extraneous content (the paragraphs describing how to inspect the consumer reporting agency’s files and obtain additional agency disclosures).
- The court held that, in addition to the bare statutory statement, an employer may include a concise explanation that helps the applicant understand what it means that a consumer report may be obtained for employment purposes.
- The court remanded for the district court to decide whether the remaining disclosure language (minus the extraneous paragraphs) was “clear and conspicuous.”
- The court held § 1681b(b)(3)(A) does not require informing applicants of an opportunity to discuss the report directly with the employer; the statute requires notice of rights to dispute inaccuracies with the consumer reporting agency.
- The court affirmed dismissal of the claim premised on an asserted right to discuss the report directly with Fred Meyer before adverse action.

## Legal Principles

- Under 15 U.S.C. § 1681b(b)(2)(A)(i), before procuring a consumer report for employment purposes, an employer must provide a “clear and conspicuous” disclosure “in a document that consists solely of the disclosure.”
- The “solely” requirement bars including extraneous material in the disclosure document, even if related to background checks.
- Limited additional text may be part of the disclosure when it concisely explains the meaning of obtaining a consumer report for employment purposes (e.g., what a consumer report is, how it will be obtained, and the employment purposes for which it may be used).
- Information about a consumer’s rights to inspect the consumer reporting agency’s files or obtain additional agency disclosures is extraneous to the required disclosure and violates the standalone document requirement.
- Under 15 U.S.C. § 1681b(b)(3)(A), an employer’s pre-adverse-action duties are to provide a copy of the report and a written description of FCRA rights, including the right to dispute inaccuracies with the consumer reporting agency; the statute does not add a duty to invite or facilitate direct discussion with the employer.

## Conclusion

The Ninth Circuit held that Fred Meyer’s background-check disclosure violated FCRA’s standalone-document requirement by including extraneous statements about agency-file inspection and related rights, while rejecting the claim that FCRA requires a pre-adverse-action notice to advise applicants of a right to discuss the report directly with the employer; the case was remanded to assess whether the remaining disclosure language was clear and conspicuous.


Walker v. Fred Meyer, Inc., 953 F.3d 1082 (9th Cir. 2020)