A district court in Ohio dismissed a plaintiff's claims under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., because he could not show that the report caused him an injury or that the background screening company failed to maintain reasonable procedures to ensure accuracy.
Plaintiff Thomas Black brought a putative class action against General Information Solutions ("GIS") under the FCRA arising out of a background check in conjunction with an employment application. The employer hired GIS to perform a background check on Black, and GIS assigned this task to one of its vendors. The vendor, and subsequently GIS, reported a felony robbery conviction. However, the robbery charge had not resulted in a conviction and had been dismissed.
Black originally faxed his dispute to the wrong number, so GIS never received it. When Black sent the dispute to the correct number, GIS immediately conducted an investigation and only seven days later deleted his entry and issued a corrected report. The employer was still filling positions and requested references from Black. However, Black never provided the verifiable references. The employer provided testimony that Black would have been considered if he had provided the references.
In considering GIS' motion for summary judgment, the Court raised the issue of standing sua sponte. Because Black missed out on a job opportunity based on his own failure to provide the requested references, the Court found that it was "apparent that Mr. Black has provided no evidence to show that he suffered any such harm as a result of GIS' alleged violation of the FCRA." With no injury resulting from the report, he did not have standing to bring a suit. This lack of injury also prevented him from proving all of the elements of his claim under § 1681e(b), since a plaintiff must prove that a report caused an injury in order for them to recover.
Importantly, the Court also determined that GIS was not liable for a willful violation under §1681e(b), despite an inaccurate report, because it had "very effective procedures in place to ensure the accuracy of the consumer reports." Specifically, the Court looked at GIS' and the vendor's "remarkably low" dispute rates, the responsiveness to the dispute, and the lack of evidence of similar disputes. Moreover, GIS trained its employees on FCRA compliance and assessed the quality of its reports. Although the vendor's researcher failed to follow the procedures in this instance, the "failure of one individual investigator to follow the established procedures . . . is not sufficient to create liability against the background check company."
This decision shows the importance for employers to maintain proper hiring procedures. Creating and implementing effective procedures can allow for a company to escape liability even if an individual employee fails to follow those procedures. It also highlights the Sixth Circuit's standard requiring plaintiffs to suffer a real injury if they want to bring suit in federal court.
Cindy Hanson of Troutman Sanders LLP represented GIS in its successful defense of this case. The case is Black v. General Info. Sols., LLC, Case No. 1:15-cv-1731 in the Northern District of Ohio. The Court's opinion can be found here.
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