When Contractual Consent Isn’t Enough

The problem with constructive consent, or substituting “manifestations of assent” for actual assent, in consumer contracts is that consumers often aren’t aware what rights they’ve relinquished or what they have agreed to have done to them.  Too bad for consumers, right?  Well, it’s also too bad for companies.  Companies that rely on contracts to obtain consumer consent may find that what suffices for consent in contract law just won’t cut it under other law that seeks actual consumer consent.  Michaels, the arts and crafts store chain, found that out the hard way.  They were recently hit with two class action lawsuits alleging that their hiring process violates the Fair Credit Reporting Act (FCRA).  Job applications clicked an “I Agree” box which indicated “consent” to the terms and conditions which authorized a background check on the applicant.  As this article in the National Law Review explains, the FCRA requires that job applicants receive “clear and conspicuous” standalone notice if they are seeking consent from applicants to obtaining a background report.  A click box likely won’t (and shouldn’t) cut it.  Contracts that everybody knows nobody reads shouldn’t be considered sufficient notice.  It would, of course, be much simpler if contractual consent were more aligned with actual human behavior….