Written By ESR News Blog Editor Thomas Ahearn

On February 8, 2022, the United States Court of Appeals for the Ninth Circuit ruled that a tenant screening company did not “willfully or negligently” violate the Fair Credit Reporting Act (FCRA) by providing a background check report that contained a non-conviction record more than seven years after the date of the charge.

The original lawsuit filed in 2011 claimed the tenant screening company issued a background check report that included a non-conviction record that predated the report by more than seven years in violation of the FCRA. The company argued the record was included because it was less than seven years after the charge was dismissed.

Under FCRA § 1681c(a)(5), the section titled “Requirements relating to information contained in consumer reports [15 U.S.C. § 1681c]” reads: (a) Information excluded from consumer reports. (5) Any other adverse item of information, other than records of convictions of crimes which antedates the report by more than seven years.

In 2013, the Consumer Financial Protection Bureau (CFPB) and the Federal Trade Commission (FTC) – the two agencies that enforce the FCRA – filed an amicus brief supporting the plaintiff’s argument that the seven-year time period for non-conviction records started at the time of the charge and not at the time of the dismissal.

However, the Ninth Circuit upheld a dismissal of the plaintiff’s claim: “Defendant introduced evidence that its interpretation was consistent with industry norms. The FTC’s only guidance on the question at the time (although discussing the statute before the 1998 amendment) appeared to permit reporting the charge,” read the opinion.

The Ninth Circuit also found no proof of negligence or willfulness: “We cannot say, nor could any other reasonable fact finder, that on this record Defendant’s violation of § 1681c(a)(5) was negligent, much less willful,” the opinion concluded, and the district court’s grant of summary judgment to the tenant screening company was affirmed.

Enacted in 1970, the FCRA promotes the accuracy, fairness, and privacy of consumer information contained in screening company files, protects consumers from the willful and/or negligent inclusion of inaccurate information in their consumer reports, and regulates the collection, dissemination, and use of consumer information.

Employment Screening Resources (ESR) – a service offering of ClearStar, a leading provider of Human Capital Integrity℠ technology-based services specializing in background, credit, and medical screening – offers background screening services that help employers comply with the FCRA. To learn more, contact ESR today.

NOTE: Employment Screening Resources (ESR) – a service offering of ClearStar – 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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