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.