By: Themelis Zamparas
http://www.lexology.com/library/detail.aspx?g=d1c5f200-7fa4-485c-a535-76b8ca0852e8
This article reports the increase of lawsuits relating to the implementation of the FCRA provisions by employers and contemplates on the impact of the, still pending, SCOTUS decision on Spokeo, Inc v. Robins. The increase is quite important, giving rise to two questions:
- Are the provisions of the FCRA clear enough and what obligations exactly do they impose on employers? In other words, is it the fault of employers that they are often exposed to liability under the FCRA or the complexity of certain obligations makes it difficult even for scrupulous employers to comply?
- Is the FCRA steadily becoming yet another source of frivolous lawsuits and class actions? Or is this an indication that job applicants are becoming more and more conscious of the effect of consumer credit reports on the employer’s decision to hire them or not, and of the legal obligations that arise from the use of such reports?
The pending Supreme Court decision is expected to clarify the landscape regarding the requirements to be fulfilled in order to file an action under the FCRA, and in particular, regarding plaintiff’s standing to sue. As the article puts it “The issue is whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute. […] However, the majority of plaintiffs seeking damages for bare statutory violations of the FCRA cannot allege concrete, personal harm”. The case involves Thomas Robins, a Virginia resident who claims that Spokeo published inaccurate information about himself. The issue is whether the mere fact that Spokeo violated the Fair Credit Reporting Act, without more, give Thomas Robins a legal right – known as “standing” – to sue. It is very interesting to see whether the death of Justice Antonin Scalia will have any effect on the final decision. Justice Scalia posited that, under Robins’s interpretation, the failure, for example, of a credit reporting agency to provide a “1-800” number (required by the FCRA) would allow anyone to sue, even if it didn’t affect them at all. “You need more than just a violation of what Congress has said is a legal right” Scalia emphasized. On the other hand, some of the more progressive Justices (Sotomayor, Ginsburg) seemed more open to Robin’s interpretation of the FCRA. If Spokeo prevails, the writer of the article states that it is very likely that the Courts will put a halt to the rise of FCRA lawsuits.