What do these have in common? The fact that a federal district court judge believes that a plain reading of the Fair Credit Reporting Act (FCRA) requires background screeners obtain from an employer a certification that the person “has complied” with section 604(b)(1) each and every time before providing a background report. Meaning no use of one-time prospective blanket certifications. In the judge’s Memorandum and Order RE: Motion to Dismiss, he grants the employer’s motion to dismiss on the FCRA disclosure and authorization allegation, but does not agree to the same with respect to the background screening company and the 604(b)(1) allegation.
With respect to the allegation against the background screening company, the plaintiff argues that there is a violation of the FCRA because a consumer report was provided by the screener “without first obtaining a certification from M-I stating that M-I ‘has complied’ with its statutory obligations ‘with respect to the consumer report’” pursuant to 604(b)(1). The judge agrees that in fact this could be the case and that there is no FTC guidance or case law which would allow for a background screener to rely on a one-time prospective blanket certification from employers prior to providing a consumer report under section 604(b)(1).
This is a case to follow if you are a background screening company conducting employment related background checks. The case number is 1:14-cv-00742 and the plaintiff is Sarmad Syed. It is pending in the U.S. District Court, Eastern District of California.