FCRA Background Check Compliance – Wynn v. United Parcel Service Inc.

The case Brittany Wynn v. United Parcel Service Inc., involves the plaintiff, Brittany Wynn, filing a putative class action against United Parcel Service Inc. (UPS) alleging violations of the Fair Credit Reporting Act (FCRA). The core issue is UPS’s online consumer report disclosure practice. The FCRA mandates clear and conspicuous disclosure in writing to the consumer, in a document solely consisting of the disclosure, before obtaining a consumer report for employment purposes. Key aspects of the case include:

  1. Standalone Disclosure Requirement: The court focused on whether UPS’s disclosure, accompanied by a checkbox for electronic signature acknowledgment, violated the FCRA’s requirement for a disclosure to be in a standalone document. The court found that the checkbox did not introduce extraneous information violating the FCRA. It was part of the authorization process, permissible under the FCRA, which allows authorization to be included in the disclosure document (15 U.S.C. § 1681b(b)(2)(A)(ii)).
  2. Multiple Consumer Reports Authorization: The plaintiff contended that UPS’s disclosure inaccurately stated the law by suggesting multiple consumer reports could be obtained with a single authorization. The court disagreed, citing the FCRA’s language that does not demand separate authorizations for each report as long as initial disclosure and authorization meet the Act’s requirements. The Federal Trade Commission’s opinion supports this interpretation, affirming that an employer’s disclosure of intent to obtain multiple reports, if agreed upon by the applicant, does not contravene the FCRA.
  3. Presence of External Links on Disclosure Page: The plaintiff argued that external links on UPS’s disclosure webpage (to other parts of the site, social media, and the application progress bar) violated the standalone requirement. The court found these links, positioned in the page’s margins and not containing substantive information about privacy rights, did not detract from the FCRA disclosure. They were likened to navigational aids, not substantive text that could divert attention from the disclosure.

The Ninth Circuit affirmed the district court’s judgment, concluding there was no FCRA violation. The court’s decision was grounded on interpretations of the FCRA’s standalone disclosure requirement, the permissibility of obtaining multiple reports under a single authorization, and the non-intrusive nature of web design elements like external links. The court did not delve into the issue of willfulness or other raised issues, focusing solely on the alleged FCRA violations.

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