Public Record and Employment Reports: What You Need to Know

When a consumer reporting agency reports public records that are likely to have an adverse effect upon a consumer’s ability to obtain employment, the Fair Credit Reporting Act gives consumer reporting agencies a choice. The agency can either (1) provide a contemporaneous notice to the consumer at the time that the it reports the public record information to the user of the report or (2) “maintain strict procedures designed to insure that whenever public record information which is likely to have an adverse effect on a consumer’s ability to obtain employment is reported it is complete and up to date.” 15 U.S.C. § 1681k(a). Many agencies opt for “strict procedures” rather than contemporaneous notice.

Because consumer reporting agencies often buy criminal record data in bulk which does not contain all personally identifying information associated with a record, in many instances when a consumer reporting agency has inaccurately attributed a criminal or other public record to a consumer, the consumer reporting agency will have omitted in the report some personal identifying information associated with the subject of the public record, such as a social security number, birthdate, or address. There is some disagreement among courts about whether the omission of personally identifying information regarding the subject of the public records violates the “complete and up to date” requirement of § 1681k.

In Henderson v. Corelogic Nat’l Background Data, LLC, No. 3:12CV97, 2016 WL 1574048, at *12 (E.D. Va. Apr. 18, 2016), the court found that the omission of a social security number could render a report “incomplete.” The court reasoned that: “A ‘complete’ record permits a user to either link the record to the consumer who was the subject of the search query or exclude that consumer as the source of the record. Conversely, then, any record that does not contain sufficient identifying information to verify the identity of the originating consumer is incomplete.” Henderson v. Corelogic Nat’l Background Data, LLC, No. 3:12CV97, 2016 WL 1574048, at *12 (E.D. Va. Apr. 18, 2016).

Similarly, Legrand v. Intellicorp Records, Inc., No. 1: 15 CV 2091, 2016 WL 1161817, at *6 (N.D. Ohio Mar. 24, 2016), the plaintiff claimed that the consumer reporting agency had falsely portrayed plaintiff as having been sanctioned by the government and omitted key pieces of information related to the subject of the public record. The Court found “that by leaving out identifying information included in the public record, which information would allow an employer to determine whether the report, in fact, applied to the applicant at issue, IntelliCorp’s reported information was not complete.” (Attorneys, including myself, at Berger Montague represent the plaintiff in Legrand)

On the other hand, one court has disagreed with Henderson. In Jones v. Sterling Infosys. Inc., No. 1:14-cv-03076-VEC, ECF No. 67 (Mar. 30, 2016), the court found that § 1681k(a)(2) only requires that an agency to report the “current public record status of an item” rather than personally identifying information associated with the record. The court also looked to the text of the FCRA, concluding that

The meaning of the word “complete” in section 1681k(a)(2) is susceptible to multiple and wide-ranging meanings, so its intended meaning must be determined in light of its use as part of the phrase “complete and up to date,” and the second sentence of the provision: “[f]or purposes of this paragraph, items of public record relating to arrests, indictments, convictions, . . . and outstanding judgments shall be considered up to date if the current public record status of the item at the time of the report is reported.” 15 U.S.C. § 1681k(a)(2). The plain language of section 1681k(a)(2) supports interpreting “complete” in the context of the currency of the reported public records. On the statute’s face, Congress identified the types of public record items with which it was concerned —i.e., records relating to arrests, indictments, convictions, etc.—and highlighted its concern about “the current public record status of the item at the time of the report.”

Id., slip op. at 6-7. The court also reasoned that § 1681e(b), which requires that consumer reporting agencies “follow reasonable procedures to assure maximum possible accuracy” was “more obviously tailored” to a complaint of inaccurate reporting. Id., slip op. at 7.

Since the Jones decision, another district court has agreed with Henderson and refused to follow Jones because “a plethora of case law supports the position that public record employment reports are incomplete and do not satisfy the strict procedures requirement for purposes of § 1681k(a) if the data included in the records reported is so incomplete that those records cannot be matched to the correct consumer.” Moody v. Verified Credentials, Inc., No. 0:16-cv-60364-WPD, ECF No. 45 (S.D. Fla., June 6, 2016) (citing cases).

Who has the better of the argument? In my opinion, it is the Henderson line of cases. First, Henderson is more faithful to the text of the FCRA which imposes two that reports be both (1) complete and (2) up to date. A statute should be construed such that no words are superfluous, and the reasoning in Jones seemingly reads the completeness requirement out of the statute. Further, the Jones court’s construction of the word “complete” relies heavily on the second sentence of § 1681k(a)(2) which defines what it means for a record to be “up to date.” But it does not follow that what constitutes an “up to date” record also constitutes a “complete” record Moreover, that another provision of the FCRA more generally deals with accuracy does not mean that §1681k was not also meant to prevent inaccurate reports. That heightened ‘strict” procedures are required when reporting public record information is not inconsistent with § 1681e(b)’s general requirement “to follow reasonable procedures to assure maximum possible accuracy” in all reporting. After all, the FCRA was passed “to require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce . . .in a manner which is fair and equitable to the consumer, with regard to the . . . accuracy of such information . . . ” 15 U.S.C. § 1681. It is entirely consistent with the purposes of the FCRA to require that consumer reporting agencies report sufficient personal identifying information associated with a public record when preparing reports for employment purposes that contain negative public record information.