Equifax Data Breach

New York Consumer Law Blog

Friday, March 3, 2017

Employer Commits Willful Violation of Fair Credit Reporting Act By Including Waiver In Statutorily Mandated Disclosure

In Syed v. M-I, LLC, the Ninth Circuit held that including waiver of potential claims language in the same document as the statutorily required Fair Credit and Reporting Act disclosure was a violation of FCRA.  In sum, the Court ruled that the FCRA rights notice cannot be combined with any other notice or agreement.  It must be a stand-alone document. In determining that the violation was “willful,” the Court held that the “ordinary meaning of ‘solely’ is alone; singly or entirely; exclusively.”  As such, the employer’s violation of the Act was willful because “where a party’s action violates an unambiguous statutory requirement, that fact alone may be sufficient to conclude that its violation is reckless, and therefore willful.”  A willful finding is significant because under FCRA, willful violations allow for the recovery of fines, punitive damages, and attorney’s fees, while negligent violations permit only actual damages.

 

http://www.natlawreview.com/article/employer-commits-willful-violation-fair-credit-reporting-act-including-waiver


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