Drafting Yourself into a Lawsuit

By Beth Ann Lennon

Many employment-related statutes require employers to provide “clear and conspicuous” communications to employees.  The Ninth Circuit’s decision last week in Gilbert v. Cal. Check Cashing Stores (“CCCS”), No. 17-16262, reminds us of the need to proofread employment documents to satisfy that requirement.  As the Ninth Circuit was forced to explain again, to be “clear and conspicuous” a document must be “reasonably understandable” and “readily noticeable” by its intended audience – the employee.   After reviewing the form used by CCCS to provide mandatory disclosures under the Fair Credit Reporting Act (“FCRA”), the Court found their form was not “reasonably understandable.”  “[A] reasonable person would not understand” the incomplete, grammatically incorrect, run-on sentences found throughout that form.  Also, the form “would confuse a reasonable reader” because it did not stay on subject.  It combined federal and state disclosures in a manner that confused rather than clarified.  While CCCS ultimately squeaked by on the “readily noticeable” front, with just a slap on the hand for having “inadvisably” printed their disclosure “in Arial Narrow, size 8 font,” they still violated the FCRA, as the form had to be both “clear” and “conspicuous.”  One out of two just didn’t cut it.

Learn from their mistakes.  Stick to the subject-matter.  Title the document so the employee can “see what she [is] signing.” Use capitalization, bolding, and underlining to draw attention to any portion of a document that must be “clear and conspicuous;” and use clear, simple language that your reader will understand in complete, grammatically correct sentences.  Most importantly, PROOF READ your documents BEFORE you start using them.