Written By ESR News Blog Editor Thomas Ahearn
A District Court in Pennsylvania has ruled that the “complete and up to date” requirement of the federal Fair Credit Reporting Act (FCRA) that consumer reporting agencies (CRAs) must follow when performing background checks does not include an “accuracy” component as well.
The Opinion states CRAs comply with § 1681k of the FCRA by maintaining “strict procedures designed to insure that whenever public record information which is likely to have an adverse effect on a consumer’s ability to obtain employment is reported it is complete and up to date.”
In Kelly v. Business Information Group, the plaintiff claimed he was denied employment based on erroneous public record information contained in a consumer report and that the defendant failed to furnish “complete and up to date” information as required by § 1681k of the FCRA.
The plaintiff claimed the report was not “complete and up to date” under the FCRA because it contained public record information that belonged to someone else and failed to include personal identifiers linking the record to the plaintiff. The court rejected these arguments and concluded:
- We do not lightly dismiss a claim where a consumer’s employment prospects were limited by Defendant’s communication of erroneous negative information bearing upon his credit. While § 1681k(a) seeks to address injuries in that setting, however, it does not provide a cause of action for all errors in that context. Rather, § 1681k(a) reflects Congress’s concern that public record information was being gathered, allowed to go stale, and then reported in that “incomplete and out of date” state. We cannot interpret § 1681k(a) independent of its plain meaning, particularly where another provision is capable of providing a remedy for the similar harm that may be caused by the reporting of inaccurate information. We thus reject Plaintiff’s proposed interpretation of § 1681k(a)(2), as we have determined that this section requires that the consumer have been the subject of a report that was not “complete and up to date” and that “completeness” refers not to accuracy nor to inclusion of identifying information as to the consumer but rather the current public record status of the item that is attributed to the consumer.
The Memorandum Opinion for Kelly v. Business Information Group, Inc., Case 2:15-cv-06668-DS, filed in the United States District Court for the Eastern District of Pennsylvania, is available at www.esrcheck.com/file/Kelly-v-Business-Information-Group_Opinion.pdf.
Two Whitepapers on FCRA Lawsuits from ESR
Employment Screening Resources® (ESR) founder and CEO Attorney Lester Rosen has written the whitepaper Common Ways Prospective or Current Employees Sue Employers Under the FCRA to explain the reasons employers face FCRA lawsuits from applicants and employees.
Rosen writes: “More often than not, employers are sued for violating FCRA 101 – simple rules and procedures that are clearly set out in the law.” The complimentary whitepaper from ESR is available at www.esrcheck.com/Whitepapers/Ways-Employees-Sue-Employers-Under-FCRA/.
Rosen also wrote a second whitepaper for employers who use third party background screening providers entitled Common Ways Consumer Reporting Agencies are Sued Under the FCRA that describes certain practices employers should keep in mind when choosing a CRA.
Rosen describes issues that can give rise to FCRA class action lawsuits against CRAs in the legally-sensitive area of employment background checks. The complimentary whitepaper from ESR is available at www.esrcheck.com/Whitepapers/Ways-CRAs-Sued-Under-FCRA/.
NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.
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