Under the Fair Credit Reporting Act (FCRA), an applicant has a right to 1. Be told if information in their file has been used against them to deny employment or to take another adverse action against them, 2. Know what is in their file, 3. Dispute incomplete or inaccurate information, and 4. Seek damages from violators. Employers often wonder if they have an obligation to send a second pre-adverse action notice to an applicant after updating the background screening report. Pam Devata and Jennifer Mora of Seyfarth Shaw LLP recently shared information about Wright v. Lincoln Prop Co., in which a judge in the Eastern District of Pennsylvania considered how an employer can comply with the adverse action process if it relies on an initial background report before revoking a job offer, but then received a subsequent, corrected report. Both parties in the case moved for summary judgement, but the court denied the employers motion for summary judgement because a copy of the final report was not sent to the plaintiff. According to Devata and Mora, however, this is a not a blanket requirement. It is worrisome, in fact, that the FCRA language, shall provide a copy of the report to the consumer to whom the report relates could be defined differently from judge to judge. Another judge could determine that must provide can mean actual receipt or proof of delivery. It is in the best interest of employers to strive for achieving best practices that exceed the legal minimum requirement.

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Post By Barry Nixon (70 Posts)

W. Barry NIxon, SHRM-CMP is the founder of PreemploymentDirectory.com, the publisher of The Background Buzz, The Global Background Screener, The Annual Background Screening Industry Resource Guide and In Search of Excellence in Background Screening: Insights from Accredited Background Screening Firms. He is co-author of Background Investigations: Managing Hiring Risk from an HR and Security Perspective, a recognized background screening expert and serves as an International Ambassador for the National Association for Professional Background Screeners.