California Supreme Court Upholds Constitutionality Of State Consumer Reporting Statute

Author:Mrs Pamela Devata, Jennifer L. Mora and John Drury
Profession:Seyfarth Shaw LLP
 
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Seyfarth Synopsis: After several years of litigation, in Connor v. First Student, Inc. the California Supreme Court decided that the California Investigative Consumer Reporting Agencies Act (“ICRAA”) was not unconstitutionally vague as applied to employment background checks. It reached this conclusion notwithstanding its finding that there is some overlap between the ICRAA and the California Consumer Credit Reporting Agencies Act (“CCRAA”). As such, employers and consumer reporting agencies must abide by both statutes where applicable.

Background

The ICRAA regulates information-gathering on consumers that employers and others use in their decisions regarding employment and other things. The ICRAA governs consumer reporting agencies (and those to whom they provide information) with regard to investigative consumer reports—reports containing information on a consumer's character, general reputation, personal characteristics, or mode of living. The CCRAA is a similar statute that governs consumer credit reports—reports containing information on a consumer's creditworthiness, credit standing, or credit capacity. The two statutes both impose duties regarding disclosure to consumers and limit when and where reports can go, but have different obligations, limitations, and remedies for violations. The ICRAA generally is more onerous and allows greater remedies.

The Facts

Eileen Connor drove a school bus. Her employer, concerned about the safe operation of school buses, performed an investigative background report on her. Connor sued her employer and the employer's background screening provider for failing to comply with the ICRAA. She filed her lawsuit on behalf of a class of current and former bus drivers.

The employer, before conducting any background check, had sent Connor aSafety Packet booklet. The booklet included a notice, entitledInvestigative Consumer Report Disclosure and Release, that authorized the background screening provider to prepare a consumer report or investigative consumer report. The notice advised Connor of her right to view the file maintained on her, to receive a summary of her file by telephone, and to obtain a copy of her file. The notice also stated that Connor could request aninvestigative consumer report that includednames and dates of previous employers, reason for termination of employment, work experience, accidents, academic history, professional credentials, drugs/alcohol use, [and] information relating to...

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