Plaintiff Ernesto Limon received a set of disclosure forms used by convenience store chain, Circle K Stores, in their hiring process. Limon subsequently authorized Circle K to perform a background check and was hired. After Limon's employment ended, he sued the employer in federal court for allegedly violating the Fair Credit Reporting Act (FCRA), claiming the disclosure he was provided was not "clear and conspicuous."

The FCRA requires employers to provide a stand-alone disclosure that is not combined with other documents nor one that contains extraneous information. However, it also provides that an individual must show concrete proof of harm or injury.

In this case, the court did not focus on whether the forms were in violation of the FCRA but rather whether Limon had suffered any actual harm or injury. Ultimately, the court determined that the plaintiff had not met that burden of proof. This ruling was a first in California; state courts had historically permitted claims like these to proceed based on statutory violations alone, regardless of whether the worker demonstrated concrete harm or injury.

Limon re-filed his claims in state court. The California trial court also dismissed the case on similar grounds, noting that "an informational injury that causes no adverse effect is insufficient to confer standing upon a private litigant to sue" under California law. The plaintiff's petition for review of the decision was also rejected by the California Supreme Court.

Employers are encouraged to review background check disclosure and authorization forms in order to ensure compliance with FCRA regulations. Additionally, it is important for employers to keep in mind that background check laws vary significantly from state to state, and many involve more than what is required under FCRA.

Posted: February 16, 2023