What does “consisting solely of a disclosure” mean?

Before running a background check on an individual, employers must provide a disclosure “in a document consisting solely of a disclosure” that they are going to do so. 15 U.S.C. § 1681b(b)(2). Many employers fail to abide by this simple legal requirement and instead provide employees and applicants with lengthy documents containing all kinds of extra information. The following kinds of information serve as examples of the kinds of information that employers are forbidden to include in their disclosure forms:

– Liability releases
– Statements that the individual agrees the employer is making hiring decisions for “legitimate non-discriminatory reasons”
– Releases of information, such as providing permission for schools, government agencies, and past employers to provide information to the employer’s chosen background check company

Cases against employers who fail to follow legal disclosure requirements are an important mechanism to protect worker privacy and confidentiality.

The lawyers at Berger & Montague have had tremendous success in litigating these kinds of claims, and have litigated cases resulting in millions of dollars being distributed to their clients based on these kinds of claims. See, e.g., Knights v. Publix Super Markets, Inc., No. 14-cv-720 (M.D. Tenn.) (settled for approximately $6.75 million); Brown v. Delhaize America, LLC, No. 14-cv-195 (M.D.N.C.) (settled for approximately $2.99 million); Singleton v. Domino’s Pizza, LLC, No. 11-cv-1823 (D. Md.) (settled for $2.5 million); Johnson v. Casey’s Mktg. Co., No. 15-cv-3086 (W.D. Mo.) (settled for $500,000); Avila v. NOW Health Grp., Inc., No 14-cv-1551 (N.D. Ill.) (settled for $100 per class member); Arocho v. Pepco Holdings, Inc., No. 14-cv-1549 (D.D.C.) (settled for $110 per class member).


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