CheckSmart’s
Definition
HOLDING AND REASONING: (Fisher, J.) Yes. Under the FCRA, an employer can obtain an applicant’s consumer report only if the employer first provides the applicant with a standalone, clear, and conspicuous disclosure of the employer’s intent to do so. The relevant provision in ICRAA is identical. The standalone requirement comes from statutory language stating that the disclosure must be in a document that consists solely of the disclosure. The word solely ordinarily means alone or exclusively. Because of the statute’s clear language, a form that includes both a disclosure of intent to obtain a consumer report and other information does not comply with the FCRA’s requirements. In addition to being in a standalone document, an employer’s disclosure of intent must be clear and conspicuous. The FCRA does not define the terms clear and conspicuous. However, drawing on definitions from the Uniform Commercial Code and the Truth in Lending Act, a disclosure is considered clear if it is reasonably understandable and is considered conspicuous if it would be readily noticeable to the applicant. Here, although form disclosed CheckSmart’s intent to obtain a consumer report, the form also contained other information, including state-mandated disclosures relevant to only certain applicants. The disclosure was therefore not in a standalone document as required by the FCRA and ICRAA. Further, although the disclosure form included capitalized, bolded, and underlined headings that likely rendered the form conspicuous, the form was not sufficiently clear. The form’s combining of federal and state disclosures could confuse a reasonable reader by creating misunderstandings as to which rights are held by all applicants and which rights are held by only applicants from particular states. Because CheckSmart’s disclosure form was not sufficiently clear and did not satisfy the standalone-document requirement, the district court erred in holding that the form complied with the FCRA and ICRAA. The district court’s judgment is vacated in part.