Employers Must Update FCRA-Required Forms

by Ballard Spahr LLP
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[authors: Paul Apicella, John L. Culhane, Jr., Brian D. Pedrow]

The Consumer Financial Protection Bureau (CFPB) has released new regulations requiring employers to update forms mandated by the Fair Credit Reporting Act (FCRA) by January 1, 2013. The changes consist primarily of substituting the CFPB for the Federal Trade Commission (FTC) as the point of contact for questions regarding consumers' rights under the Act. The CFPB assumed enforcement and rulemaking authority from the FTC under the Dodd-Frank Wall Street Reform and Consumer Protection Act.

The FCRA imposes procedural requirements on employers that gather and use "consumer reports" to hire, fire, promote, demote, or reassign current or prospective employees. Consumer reports are defined broadly in the regulations to include background checks for employment purposes.

Among the mandated procedures are those that require employers to inform applicants or employees in advance of the intent to obtain both a consumer report and their express written consent; to give an individual a copy of the consumer report and advance notice of intent to take adverse action based on the report; and to notify an affected individual in writing if adverse action is taken based on information in the report.

Under the revised regulations, the CFPB issued a revised Summary of Consumer Rights, which employers are required to furnish to individuals before taking adverse employment action. In addition, the CFPB revised the Notice of Furnisher Responsibilities, which details the obligations imposed upon furnishers of consumer reports under the FCRA, and the Notice to Users of Consumer Reports of Their Obligations Under the FCRA, which summarizes the duties of employers as consumer report users.

Employers should be aware that additional developments under the FCRA may take shape as the CFPB's oversight role becomes more defined. Ballard Spahr's Labor and Employment Group routinely assists employers in complying with federal and state laws governing the hiring process and other employment actions. If you have questions regarding FCRA compliance or other issues related to employment background checks, please contact Brian D. Pedrow at 215.864.8108 or pedrow@ballardspahr.com, Paul Apicella at 215.864.8872 or apicellap@ballardspahr.com, or the member of the Labor and Employment Group with whom you work.

Consumer financial services providers should also be aware that the CFPB will be examining institutions subject to its jurisdiction for compliance with the provisions of the FCRA that govern the use of credit reports in the employment context, as well as for FCRA compliance in all other contexts. If you have questions regarding FCRA compliance in other contexts, please contact John L. Culhane, Jr., at 215.864.8535 or culhane@ballardspahr.com, or any members of the Consumer Financial Services Group with whom you work.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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