Applicants who were denied jobs because of consumer reports that revealed drug-related convictions could sue because they did not receive copies of the reports, as required under the Fair Credit Reporting Act, but not because they did not receive the required “A Summary of Your Rights Under the Fair Credit Reporting Act.”

The Supreme Court has held in Spokeo Inc. v. Robins that, in order to sue under FCRA, a plaintiff must establish that he has suffered “concrete” harm – meaning real injury, and not simply a “bare procedural violation.” In Long v. Southeastern Pennsylvania Transp. Auth., the U.S. Court of Appeals for the Third Circuit applied the Spokeo test to find that the applicants had sufficiently alleged that the failure to provide the copy of the consumer report constituted a concrete harm, because they were unable to see or respond to the report before an adverse action – the denial of employment – was taken. The failure to provide the required notice of rights, however, was a “bare procedural violation” as the applicants became aware of their FCRA rights and were able to file suit, and therefore suffered no harm.

Employers should make sure that they are complying with the technical requirements of FCRA – particularly as to the requirement to provide a copy of the consumer report prior to taking any adverse action. Moreover, although the failure to provide the notice of rights was not actionable in this case, it is possible that some other applicant, who missed the filing deadline for a FCRA violation because of the lack of notice, could assert a concrete harm. Employers should also note that the required notice – “A Summary of Your Rights Under the Fair Credit Reporting Act” – has just been updated and must be implemented, as discussed elsewhere in this E-Update.