Court Finds Sending Copy of Background Check and Summary of Rights Satisfies FCRA Pre-Adverse Action Requirements

Written By ESR News Blog Editor Thomas Ahearn

A Pennsylvania Court has found in the case of Wright v. Lincoln Property Company that an employer who considered rejecting an applicant based on a background check and followed “pre-adverse” action rules under the federal Fair Credit Reporting Act (FCRA) that requires employers to send applicants a copy of their background checks and a summary of rights under the FCRA prior to taking “adverse action” is only obligated to send the applicant these documents and whether the applicant receives them is irrelevant.

According to a Memorandum by U.S. District Judge Gene E.K. Pratter in the District Court for the Eastern District of Pennsylvania, plaintiff Lemuel Wright applied for a job with Lincoln Property Company and agreed to undergo a background check. Lincoln sent Wright a copy of the background check along with the document “A Summary of Your Rights Under the Fair Credit Reporting Act.” However, Wright argued that Lincoln did not satisfy the FCRA requirements because he never actually received the documents.

The Court was not persuaded by Wright’s argument that the failure to receive the background check report supported an FCRA violation by the defendant: Nothing in the plain text of § 1681b(b)(3)(A) requires entities relying on background checks to ensure that the consumer to whom the report relates actually received the notice. The statute simply states that the entity intending to take adverse action against the employee “shall provide” a copy of the report to the consumer to whom the report relates.

The Court concluded: There is nothing in the statute, and Mr. Wright does not point to any case law, establishing a requirement that the entity intending to take adverse action take measures to ensure receipt. Despite the ruling, the Court denied Lincoln’s full motion for summary judgment because Lincoln sent an “in progress” version of the background check report to Wright and not the final version which may not satisfy the requirements of the FCRA. The complete Memorandum is available here.

ESR Whitepapers about FCRA Lawsuits

Employment Screening Resources® (ESR) founder and CEO Attorney Lester Rosen has written a whitepaper entitled “Common Ways Prospective or Current Employees Sue Employers Under the FCRA”   to explain the reasons employers face FCRA lawsuits. 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 ESR whitepaper is 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 and describes issues that can give rise to FCRA class action lawsuits against CRAs in the area of background checks. The complimentary ESR whitepaper is 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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