Attorneys Michele Haydel Gehrke and Brian K. Morris recently wrote about about a case that may have significant impact on employers. particularly employers facing lawsuits regarding adverse action procedures, FCRA disclosure forms and proper notice of rights paperwork.
Readers of our blog know we follow litigation against employers surrounding background checks and try to help mitigate the risks with information and free resources like Top three lawsuits and how to avoid them.
The Fourth Circuit reversed an $11.7 million verdict in a 69,000 member Fair Credit Reporting Act (FCRA) class action. In Dreher v. Experian Info. Solutions, Inc., 856 F.3d 337 (4th Cir. 2017), the Fourth Circuit applied the Supreme Court’s decision in Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016) and concluded that the plaintiffs failed to demonstrate a concrete injury and thus lacked Article III standing to pursue the claims. The plaintiff in Dreher underwent a background and credit check to obtain a federal government security clearance, which revealed a delinquent credit card account. The plaintiff alleged that Experian violated the FCRA by listing the incorrect name (but the correct address) of the delinquent account holder on his credit report.
The district court, in a decision pre-dating Spokeo, awarded summary judgment to the plaintiff. When finding that plaintiff had standing, the district court reasoned that “any violation of the [FCRA] sufficed to create an Article III injury in fact.”
The Fourth Circuit – applying Spokeo – reversed, concluding that the plaintiff failed to demonstrate a concrete injury. While Experian may have denied plaintiff access to statutorily-required information (i.e., the correct name of the account holder), that was insufficient to satisfy Article III. Rather, a plaintiff must demonstrate an injury cognizable at common law, or a statutory violation coupled with the kind of injury Congress sought to prevent by enacting the statute in question. The plaintiff in Dreher demonstrated neither.
Specifically, the misidentification of the account holder did not impede the credit resolution process, or plaintiff’s ability to obtain a security clearance. The plaintiff’s mere “nebulous frustration resulting from a statutory violation” that was “divorced from any real world effect” did not satisfy Article III.
What Does this Mean for Employers?
The Fourth Circuit is the latest appellate court to weigh in on standing under the FCRA after the Supreme Court’s decision in Spokeo. Drehermay serve as useful ammunition for employers defending against increasingly common FCRA class actions which seek to predicate standing upon technical statutory violations, such as:
- Including “extraneous” information in FCRA disclosures.
- Failing to follow statutory procedures before taking an adverse action based on information contained in a background check (e.g., providing a pre-adverse action notice).
- Failing to provide the FCRA “notice of rights.”
Learn about the top 3 FCRA lawsuits so you can avoid the same mistakes these agencies made.