An investigation report from a Consumer Reporting Agency (CRA) that includes public record information without adequate identifiers, context, or case status updates fails to meet the statutory requirements of being “complete and up to date.” When this happens both the CRA and the company receiving the report are exposed to litigation.
This article from legalreader.com explains why CRA’s are under strict requirements to provide reports that are as accurate as possible particularly when the report contains adverse information. Below is a summary of the article. We encourage a full review of the article.
[R&A Comment – We think it is important for companies to understand the regulatory environment surrounding the delivery of consumer reports by a CRA and the effect it has on report turnaround time.]The Fair Credit Reporting Act (FCRA) reflects a fundamental congressional concern with the accuracy and fairness of consumer reporting, especially when public record information is used to evaluate employment candidates in background check error cases.
Among the most significant of these amendments is 15 U.S.C. § 1681k(a), a provision designed to protect job applicants when CRAs furnish public record information—such as criminal records, civil judgments, or liens—that is likely to adversely affect the applicant’s employment prospects. §1681k(a)(2), in particular, permits a CRA to avoid directly notifying the consumer of the information’s disclosure only if it maintains “strict procedures” to ensure the public record information is “complete and up to date.”
Key Points
This article from legalreader analyzes the heightened accuracy protections Congress built into 15 U.S.C. §1681k(a)(2) of the Fair Credit Reporting Act, a provision governing the use of public record information in employment screening. This article from legalreader explains why §1681k(a)(2) imposes a stricter standard than the general “reasonable procedures” mandate of §1681e(b). It argues that “strict procedures,” as the statute uses the term, require CRAs to ensure that public record information is both “complete” and “up to date” in a substantive sense: the data must contain all necessary identifiers and contextual elements to reliably link the record to the specific consumer, and it must accurately reflect the record’s current legal status. The analysis concludes that incomplete, ambiguous, or outdated public records—especially those lacking dispositive identifiers—fail the statutory standard and undermine the protective purpose of §1681k(a)(2), which is to prevent job applicants from being harmed by misattributed or obsolete public record disclosures.
- 1681k(a)(2) introduces a separate and more demanding requirement: CRAs must follow “strict procedures” to ensure that public record information used for employment purposes is “complete and up to date.” Congress’s use of the term “strict” rather than “reasonable” was deliberate, signaling that the standard here is not the baseline duty owed under § 1681e(b), but rather a heightened level of care reserved for the especially sensitive context of employment decision-making.
This definition makes clear that information cannot be considered “complete” if it is missing any component necessary to accurately represent the subject of the report for whom the amendment was enacted to protect. If a public record, such as a criminal charge, is reported without the full context—such as the disposition of the charge, the final judgment, or the identifiers needed to link the charge definitively to the subject consumer—then it lacks essential elements and is therefore incomplete.
And because the public record is being reported in the context of the consumer’s employment report, the criminal record must be complete in the sense that it fully and accurately represents the plaintiff’s criminal portfolio ascribed to that record.
In the absence of clarifying identifiers, the record is presumed applicable, and the consumer is left to bear the burden of disassociating himself from it—a result the statute was plainly intended to prevent.
Likewise, “up to date” requires that the information reflect the current and accurate status of the record. Reporting an arrest or conviction without indicating that it was later dismissed, expunged, or overturned renders the information outdated and misleading.
The entire purpose of § 1681k(a) is to protect the job applicant from being harmed by inaccurate, incomplete, or misattributed public record disclosures. Furnishing public record data that lacks the full scope of information necessary to associate it reliably with the applicant —is tantamount to reporting about someone else entirely. This deprives the applicant of the very protection that § 1681k(a)(2) was enacted to provide for employment applicants.
“Strict procedures” are not merely a higher degree of reasonable effort—they reflect an obligation to use rigorously designed, consistently applied, and substantively effective measures to ensure that the information furnished is not only maximally accurate, but also specifically relevant to the individual consumer at issue. Anything less—particularly where the information cannot be definitively linked to the consumer—is a violation of the statutory duty to ensure completeness and currency.
In conclusion, a report that includes public record information without adequate identifiers, context, or case status updates fails to meet the statutory requirements of being “complete and up to date.” Congress enacted § 1681k(a)(2) to prevent exactly this kind of harm—where a person is denied employment or stigmatized based on incomplete, ambiguous, or misleading public records.
James P. Randisi, President of Randisi & Associates, Inc., has been helping employers protect their clients, workforce and reputation through implementation of employment screening and drug testing programs since 1999. This post does not constitute legal advice. Randisi & Associates, Inc. is not a law firm. Always contact competent employment legal counsel. To learn more about the rights of employees who test positive for marijuana, Mr. Randisi can be contacted by phone at 410.336.0287 or Email: info@randisiandassociates.com or the website at Randisiandassociates.com
