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No Confusion, No FCRA Claim

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Litigation over an employer’s disclosure form used as part of the background screening process continues at a steady pace. A recent case from the U.S. District Court, District of Massachusetts, provided a Massachusetts employer a nice win as it relates to Fair Credit Reporting Act (FCRA) allegations.
 
Filed in December 2019, the plaintiff’s lawsuit included state law allegations (related to state wage law and sex discrimination) along with two FCRA claims. Regarding the FCRA claims, the plaintiff completed a disclosure and authorization form as part of the hiring process. The disclosure form referenced a company that would prepare the consumer report, along with components of what types of searches could form the background check. On a second page, the form included a liability waiver. The plaintiff signed the disclosure and authorization form and was hired by the employer. Ultimately the plaintiff resigned from her position following issues in the workplace related to her other claims.
 
The court acknowledged the split in courts on the disclosure form issue noting some had found the inclusion of information such as a waiver of liability to be sufficient for a case to proceed while other courts had found the opposite. Siding with the latter, the court determined a “mere technical violation” of the FCRA was insufficient to establish standing.
 
Turning to whether the plaintiff alleged a concrete harm due to the “allegedly deficient disclosure” form, the court noted the plaintiff did not allege she was confused by the form or that she was unaware of what document she was signing. Essentially, she did not claim the extra information in the disclosure form caused her any actual confusion as to whether or not a background check would be conducted. Based on this analysis, the court determined the plaintiff could not demonstrate an invasion of privacy occurred as well.
 
Based on the above analysis, the court dismissed the FCRA claims and remanded the remaining state law claims to state court.

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