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IMPORTANT: Updated Pre-Adverse Action Notice for Applicants and Employees!

APPLIES TO

All Employers

EFFECTIVE

September 21, 2018

QUESTIONS?

Contact HR On-Call

(888) 378-2456

The federal Consumer Financial Protection Bureau (CFPB) recently issued an updated version of “A Summary of Your Rights Under the Fair Credit Reporting Act” (Summary) that includes a new notice to consumers about their right to implement a free “security freeze” under certain circumstances, preventing consumer reporting agencies from disclosing the contents of a consumer report. Although the Summary has been updated with this new notice, “security freezes” do not apply to any person “using the information for employment … or background screening purposes.”

Can Applicants Sue Over the Pre-Adverse Action Notice Requirement?

APPLIES TO

All Employers with Employees in AR, DE, IA, MN, MO, NE, ND, NJ, PA, SD

EFFECTIVE

September 6, 2018 and September 10, 2018

QUESTIONS?

Contact HR On-Call

(888) 378-2456

Several Court of Appeal cases have come down recently on whether or not an applicant can sue an employer for failing to provide a pre-adverse action notice as required under the Fair Credit Reporting Act (FCRA). There is a split in the courts between the Ninth Circuit (applicants cannot sue) and Seventh Circuit (applicants can sue). More recently, the Third Circuit issued its own ruling.

Ninth Circuit: Fair Credit Reporting Act Pre-Adverse Action Notice Is a Procedural Requirement and Not an Actionable Right

APPLIES TO

Employers with AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam, and Northern Mariana Islands Employees

EFFECTIVE

July 13, 2018

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In Dutta v. State Farm, the Ninth Circuit Court of Appeal stated that an employee did not have standing to sue a prospective employer for failing to comply with the pre-adverse action notice requirements under the Fair Credit Reporting Act (FCRA). The FCRA requires employers to give applicants notice before they take any adverse employment action based on the results of a consumer report (e.g., credit report). This requirement is meant to give the applicant an opportunity to contest or correct information in the credit report. After providing such pre-adverse action notice and certain timing requirements are met, an employer may then take the adverse action if it still intends to do so.