Receipt of an Updated Background Report May Require a Second Pre-Adverse Action Notice
A recent court case in the Eastern District of Pennsylvania highlights the importance for employers’ adherence to the Fair Credit Reporting Act (FCRA) notice requirements when using background screening reports for hiring.  In Wright vs Lincoln Prop Co, the plaintiff was extended an employment offer contingent upon the successful completion of a background check. The first background report, a partial, in-progress report, revealed a misdemeanor conviction for driving under the influence as well as two separate drug-related felony convictions. A week later the employer received a final, completed report, including the same substantive criminal information.
The employer sent the plaintiff a copy of the partial, in progress report along with a summary of their rights under the FCRA requirements for taking adverse action. The employer did not send the final, completed report it received the following week because the information that was being used for the adverse action was consistent in the two reports.
While the jury has yet to decide, employers should always ensure they are complying with the Fair Credit Reporting Act’s notice requirements, including evaluating final and completed background screening reports with initial reports when determining whether to send a subsequent pre-adverse action notice. As this case demonstrates, that both background reports contained the same conviction information that resulted in the employer rescinding the job offer did not spare the employer litigation.