June 2017 Screening Compliance Update


June 2017 Screening Compliance Update

Federal Developments

CFPB Petition to Enforce Civil Investigation Demand
Recently a federal magistrate judge granted the Consumer Financial Protection Bureau’s (CFPB) petition to enforce a Civil Investigative Demand (CID) against a public record vendor that challenged the CFPB’s authority to issue the CID. Although premature as a defense at this stage, the public record vendor argued that it is not subject to the Fair Credit Reporting Act (FCRA) because it is not a consumer reporting agency. The public record vendor also argued that the CFPB lacks authority to issue the CID because it “merely operates an internet website that allows users to conduct searches for public records using search criteria selected by the customer and the search results simply contain public record information for all public records that match the customer’s search terms.” (Memorandum Opinion and Order at 20) Therefore, no “assembly or evaluating” of information under the FCRA. The CID was issued earlier this year as part of an investigation to determine whether there are unlawful acts and practices in connection with the provision or use of public records information in violation of the FCRA. The case is Consumer Financial Protection Bureau v. The Source for Public Data, LP, U.S. District Court for the N.D. of Texas, No. 3:17-mc-16-G-BN (AGG Compliance News Flash by Montserrat Miller, dated June 23, 2017)

Court Cases

Settlement of FCRA Class Action Lawsuit Against Uber
Following a settlement reached in April, plaintiffs in an Uber background check class action lawsuit have dismissed their claims against Uber’s background check provider Hirease LLC. The dismissal would let defendant Hirease out of a Fair Credit Reporting Act class action lawsuit brought by a group of Uber job candidates. These plaintiffs claim defendants Uber and Hirease violated the FCRA and applicable state laws by making adverse employment decisions based on background checks the candidates never had a chance to contest or correct. The parties submitted their proposed Uber class action settlement for court approval this past April. Under terms of the Uber FCRA settlement, Uber would pay a total of $7.5 million to Class Members affected by the allegedly unlawful background checks. The case is In re: Uber FCRA Litigation, Case No. 3:14-cv-05200, in the U.S. District Court for the Northern District of California

Dreher v. Experian Info. Solutions
The U.S. Court of Appeals for the Fourth Circuit reversed an $11.7 million verdict in Dreher v. Experian Info. Solutions, a 69,000 member FCRA class-action. The Court ruled that the plaintiffs failed to demonstrate concrete injury and thus lacked Article III standing (National Law Review).

California Jury hits TransUnion with 60 Million FCRA Verdict
A federal jury in California has ordered credit reporting agency TransUnion to pay $60 million to individuals it wrongly tagged as terrorists or drug traffickers. Under the Fair Credit Reporting Act (FCRA), credit reporting agencies (CRAs), like TransUnion, Equifax, and Experian are required to provide comprehensive information about consumers to lenders and allow individuals to review this information and dispute it if incorrect. But the 2012 class-action lawsuit claimed that TransUnion wasn’t doing that when it identified individuals as drug kingpins or terrorists because their names were similar to those found on a list maintained by the Treasury Department’s Office of Assets Control (OFAC). TransUnion had argued in a previous lawsuit, Cortez v. TransUnion, that it was not required to disclose to consumers that their name had been linked to the OFAC list, and that TransUnion did not have to investigate a person’s claim that they had erroneously been associated with that list. The Third Circuit Court of Appeals rejected TransUnion’s argument in 2010 and said the company was liable for failing to disclose OFAC alerts in files and for failing to reinvestigate and correct an OFAC alert erroneously attributed by TransUnion on the wrong file. Despite this, TransUnion allegedly continued to compile and sell reports that included erroneous OFAC alerts, while failing to provide those same alerts in the files provided to consumers who requested their information. Additionally, the lawsuit accused TransUnion of misinforming individuals of their right to dispute incomprehensive OFAC alert information and have it corrected as directed under the FCRA. The lead plaintiff in the case said that in Feb. 2011 he applied for a vehicle loan and the dealership ordered a TransUnion credit report. The resulting report had him flagged as a possible drug kingpin, leading the car dealership to refuse to extend the line of credit as businesses in the U.S. are generally prohibited from dealing with anyone on the OFAC’s list. The dealership showed the man a copy of the report, which included the names of two unknown and unrelated individuals, both of whom appear on the OFAC list of specially designed nationals and blocked persons. “Contrary to the information contained in the TransUnion report prepared for and sold to [dealership], Plaintiff is not an individual included on the OFAC list, and is not related to either [of those individuals],” the suit states. The Plaintiff said the interaction left him “shocked and embarrassed,” and he promptly called TransUnion to dispute the erroneous reporting of his inclusion on the OFAC list. A rep for TransUnion claimed that there was no OFAC alert on his report and that there was no way for him to make a dispute. The man then asked for a copy of his report to confirm the alert was not included, at which point the rep said the OFAC alert would not be included in the file sent to him. Days later, the plaintiff said he received a letter from TransUnion notifying him of the two associated names on his credit report. This, the suit claims, was not adequate disclosure as defined by FCRA and contained no summary of rights as required by the Act. The lawsuit claims that because TransUnion did not provide the OFAC alert in the man’s report, the CRA misled consumers concerning information that was being reported about them to third parties and deprived the individuals of the opportunity to dispute and correct the incomprehensive information. On Tuesday, a California federal jury found that TransUnion willfully failed to follow reasonable procedures to ensure comprehensive information related to OFAC information, failed to disclose OFAC information to individuals, failed to provide individuals with a summary of their rights under FCRA. In the end, the jury determined that each member of the class should receive $7,337.30 in punitive and statutory damages.

State Developments

Ga. – Hartsfield-Jackson to Use Continuous Background Checks on Workers
Hartsfield-Jackson International airport plans to begin using an FBI service for criminal history monitoring of airport workers, rather than its current system of conducting background checks on employees every two years. The airport plans to use the FBI’s Rap Back service facilitated by the Transportation Security Administration. The service is less expensive than re-fingerprinting employees every two years, according to city documents. The airport last year moved to the system of fingerprinting employees every two years, amid concerns about an insider threat, after previously conducting background checks only when a worker was hired. According to a summary of the FBI Rap Back system, fingerprints are retained for ongoing criminal history checks. For the full article:

Salary Information Restriction-NJ
New Jersey may be the next state to pass legislation (A3480) restricting employers ability to ask about salary history information during the hiring process, by making it an unlawful employment practice. Legislation passed the state Assembly last month by a vote of 49-19 and is now being considered by the state Senate. Massachusetts, New York City, Washington DC and Philadelphia have passed similar laws.

Prior Salary Ban Passed in Delaware and Philadelphia Law Suit Challenging Prior Salary Ban Back On
There have been two big updates on the prior salary front. First, Delaware joins the growing number of states and local jurisdictions with its enactment of a law preventing employers from requesting salary history of job candidates. The law will take effect in December 2017. Second, the Chamber of Commerce for Greater Philadelphia revived its constitutional challenge to Philadelphia’s pay equity ordinance. The United States District Court for the Eastern District of Pennsylvania had previously concluded that the Chamber could not pursue a suit seeking to block the ordinance because the Chamber, in the court’s eyes, did not allege that it or any of its member companies would suffer specific harm if the ordinance went into effect. In response, the Chamber has filed an amended complaint, alleging that the ordinance would interfere with the employee hiring by both the Chamber itself and by a number of its members. The ordinance remains on hold. Stay tuned for further developments. Last week, Delaware’s Governor, John Carney, signed into law legislation that will prevent employers from requesting the salary history of job candidates. Similar bans have been passed in New York City, Massachusetts, Philadelphia (under challenge), Puerto Rico, and earlier this month, Oregon. The law will go into effect in December 2017, right on the heels of New York City’s law, which goes into effect this Halloween. The Delaware law will make it an unlawful employment practices for an employer or an employer’s agent to “seek” the compensation history from an candidate or the candidate’s current or former employer. As with laws in other jurisdictions, employers are still permitted to ask about salary expectations and, as they are in some jurisdictions, employers are permitted to confirm compensation history after an offer of employment with terms of compensation has been extended to the candidate and accepted. The Delaware law will also make it illegal to screen candidates based on their compensation histories (i.e., to disposition a candidate because their prior salary was either too high or too low). One novel approach taken by the Delaware law is that it provides a safe harbor for actions taken by the employer’s agent. If the employer can demonstrate that the employer’s agent was informed of the requirements of the Delaware law, and instructed to comply, then the employer is not liable for actions taken by an agent in violation of this section. Therefore, employers may wish to consider revising their contracts with staffing agencies and recruiting companies to include terms obligating the staffing or recruiting company to comply with the requirements of the Delaware law. The civil penalties for violations of the Delaware law are between $1,000 and $5,000 for the first offense, and between $5,000 and $10,000 for each subsequent violation. In other pay equity news, the lawsuit challenging the Philadelphia salary history inquiry ban has been revived following its dismissal earlier this month. The City of Philadelphia passed an Ordinance that prohibits inquiries into salary history. The Ordinance was slated to go into effect on May 23, 2017, as we have previously reported here. On April 6, 2017, the Chamber of Commerce for Greater Philadelphia (the “Chamber”) filed a federal lawsuit seeking to enjoin the law. On April 19, 2017, the United States District Court for the Eastern District of Pennsylvania entered a stipulated order that stayed the effective date of the new law until resolution of the motion for preliminary injunction. On May 30, 2017, the court dismissed the Chamber’s complaint with prejudice, finding that Supreme Court and Third Circuit precedent “require the identification of a member who has suffered or will suffer harm in cases brought by an association on behalf of its members,” but granting the Chamber the ability to file an Amended complaint. Last week, the Chamber filed an amended complaint and moved for another preliminary injunction. The City’s opposition to the motion is due August 4, 2017. In the amended complaint and the new motion for preliminary injunction, the Chamber claims that the Chamber has legal standing because both the Chamber itself and a number of its member companies will be harmed by the Ordinance.

Recent Employment Laws Relating to Hiring in NYC
In the last few years, new state and local laws have changed the types of questions, investigation, and considerations that an employer is allowed in the hiring process. While most managers and boards are aware of the more well-known prohibitions in hiring, such as discriminating against race, age, or gender, it is important to understand other protected matters, such as an candidate’s criminal history, his or her salary history, and credit history. What follows are four statutes to consider when hiring new employees.

New York Corrections Law Article 23-A

Article 23-A, is a long existing New York State law that was designed to prevent unfair discrimination against individuals with criminal records. It applies to employers who have ten or more employees, and provides that employment may not be denied to an candidate due to a prior criminal conviction unless there is a direct relationship between the past crime(s) and the specific type of employment the candidate is seeking, or the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

In order to determine this, the employer must consider several factors set forth in the statute, including: (1) what types of duties are required and how the crime relates to the crime; (2) the time elapsed since the occurrence of the crime; (3) the age of the person when the crime occurred; (4) the seriousness of the crime; and (5) the legitimate interest of the employer in protecting property and the safety of individuals. The Employer must keep in mind that the public policy of New York encourages employment of those previously convicted of crimes. The law states that if the prospective employee possesses a certificate of good conduct, the employer must presume that the employee has been rehabilitated with respect to the offense. In the event the employer denies the candidate employment, the candidate may request a written statement setting forth the reasons for denial, which the employer is required to provide. Therefore, before rejecting an candidate due to his or her criminal history, the employer should make sure a written statement can be produced justifying the rejection based on the aforementioned factors outlined in this statute.

Fair Change Act (FCA) [Local Law 63 of 2015]

In 2015, the NYC Council determined that employers were not complying with Article 23-A, and so the Fair Change Act (FCA) was enacted. The FCA prohibits an employer from asking an candidate for a job anything about his/her criminal history, nor can the employer conduct a criminal check. An employer may only inquire as to noncriminal matters, such as requesting a resume and references.

Only after the employer makes a conditional offer can the employer inquire about the candidate’s criminal history and run a criminal check.

At that point, if a criminal record is found, the employer cannot just withdraw the conditional offer: the employer must first conduct an Article 23-A analysis, using the Article 23-A factors discussed previously. Therefore, the employer should ask about the circumstances of each conviction in order to review the Article 23-A factors. [During the inquiry, the employer must be careful not to ask about criminal matters that did not result in a conviction.] If, after the Article 23-A analysis, the employer wants to withdraw its conditional employment offer, the employer must provide the rejected candidate with a written copy of any criminal history search it conducted and share with the candidate a written copy of the Article 23-A analysis. The employer must allow the candidate at least three business days to respond to the employer’s concerns. The Human Rights Commission has indicated that it will vigorously enforce the FCA, and a civil penalty may be enforced. In addition, the victim of the violation may be entitled to receive back pay and front pay, along with compensatory and punitive damages.

Local Law 67 of 2017

Local Law 67 is a NYC law enacted in May 2017 to prohibit employers from inquiring about an candidate’s salary history (and benefits) during any stage of the hiring process. However, the employer is not prohibited from informing the candidate in writing or otherwise about the position’s proposed or anticipated salary or salary range. The employer is also allowed to obtain objective measures of the candidate’s productivity such as revenue, sales, or other production reports. The City Council has stated that the purpose of the legislation is to break the cycle of gender pay inequity by reducing the likelihood that a person will be prejudiced by previous salary levels. Local Law 67 does not prohibit an employer from attempting to verify with a background check an candidate’s disclosure of non-salary related information or conduct.

Stop Credit Discrimination in Employment Act (SCDEA) [Local Law 37 of 2015]

The SCDEA is a 2015 NYC law which prohibits employers from using consumer credit history when making employment decisions. Consumer credit history includes a consumer credit report, a credit score, and information obtained directly from the individual regarding credit accounts, missed payments, debts, collections and credit limits. It is a violation of the law to request consumer credit history from the candidate, or from a prior employer, or credit reporting company. It is important to note that there is an exception to the law if the candidate is being considered for a position in which he or she would be responsible for funds or assets in excess of $10,000.

Oregon Adopts an Expansive Equal Pay Act that Prohibits Salary Inquiries
Recently, Oregon enacted the Oregon Equal Pay Act of 2017. The act prohibits employers from inquiring into an candidate’s or employee’s salary history and expands the reach of the equal pay requirements. Notably, the act received bipartisan support in both the Oregon House and Senate, and was passed unanimously. Oregon law already prohibited pay discrimination on the basis of sex. The act expands this pay prohibition to include race, color, religion, sexual orientation, national origin, marital status, disability, age and veteran status. Employers cannot “in any manner discriminate between employees on the basis of a protected class in the payment of wages or other compensation for work of comparable character.” This includes paying wages, salaries, bonuses, benefits, fringe benefits or equity-based compensation to any employee at a rate greater than that at which the employer pays to employees of a protected class for work of comparable character. “Work of a comparable character” means work that requires substantially similar knowledge, skill, effort, responsibility and working conditions in the performance of the work, regardless of job description or job title. An employer is permitted to pay employees differently for work of a comparable character if the difference in compensation is the result of a seniority system; a merit system; a system that measures earnings based on quality or quantity (like piece-rate work); workplace locations; travel; education; training; experience; or a combination of these factors. In addition to the comparable pay requirement, employers may not (1) screen job candidates based on current or past income; (2) determine compensation for a position based on candidate’s current or past compensation; (3) reduce the compensation of any employee to comply with the act; or (4) seek the salary history of an candidate or employee from the candidate or employee or his or her current or former employer. An employer is permitted to request an candidate for written authorization to confirm prior compensation after the employer makes him or her an offer of employment that includes an amount of compensation. Aggrieved employees may seek two years of back pay and attorneys’ fees by filing a complaint with the Oregon Bureau of Labor and Industries or by filing a lawsuit within one year; each payment based on an underlying discriminatory practice extends this period. Additionally, if the employee proves fraud, malice, willful and wanton misconduct, or a previously adjudicated violation by the employer, the employee can recover compensatory and punitive damages. However, an employer can file a motion to disallow an award of compensatory and punitive damages. To avoid liability for compensatory and punitive damages, the employer must prove that it completed, within three years before the date the employee filed the action, an equal-pay analysis of its pay practices in good faith that was: reasonable in detail and in scope in light of the employer’s size; related to the protected class asserted by the employee; and eliminated the wage differentials for the employee and has made reasonable and substantial progress toward eliminating wage differentials for the protected class asserted by the employee. If the court grants the motion, the court may only award two years’ back pay reasonable attorney fees. Most of the act’s provisions described above relating to screening and compensation discrimination become effective on January 1, 2019. However, the cause of action and penalties associated with inquiring into candidates’ and employees’ salary history is not effective until January 1, 2024. This provides employers with time to assess its pay practices and any differences in compensation within the ten protected classes. Contact your Vorys lawyer if you have questions about the comparable pay requirements or for assistance in conducting an equal pay analysis.

Delaware Enacts Law to Address Gender Pay Gap by Prohibiting Employers from Requesting Compensation History of Job Candidates
On June 14, 2017, Delaware Governor John Carney signed a new law to address the pay gap between men and women by prohibiting prospective employers from asking job candidates about their salary history. Delaware’s law, which garnered significant bipartisan support, is based on the same rationale of similar measures enacted in Oregon, Massachusetts, New York City, and Philadelphia: pay inequities are perpetuated when current pay is based on past employer decisions that could have been discriminatory based on gender. The new law aims to reduce persistent pay gaps between the genders by prohibiting inquiry into a job candidate’s compensation history, with the hopes of encouraging employers to proactively assess pay based on other factors, such as merit, experience, and the market. Unlike other salary history laws, Delaware’s law only prohibits an employer or its agent from “screen[ing] candidates based on their compensation histories, including by requiring that an candidate’s prior compensation satisfy minimum or maximum criteria” or “seek[ing] the compensation history of an candidate from the candidate or a current or former employer.” “Compensation” is defined broadly to include wages as well as “benefits and other forms of compensation.” It is unclear how broad “other forms of compensation” will be interpreted. The law does not, like others, specifically prohibit employers from setting compensation based on prior salary history, if the job candidates voluntarily disclose their prior compensation history. The new law makes clear that an employer or its agents may discuss and negotiate with job candidates about their compensation, so long as salary history is neither requested nor required. Nor does the law expressly prohibit voluntary discussions of past salary history. Finally, an employer or its agent may further request and obtain compensation history, but only after an offer of employment with terms of compensation has been extended, and for the sole purpose of confirming the job candidates’ compensation history. Delaware’s law explicitly states that an employer will not be liable for the acts of its agent (who is not an employee), provided it can demonstrate that the agent was informed of the requirement of the law and instructed to comply. This provision was included to address employers’ concerns about liability when using outside recruiters – especially when located outside of Delaware – because they often operate outside the direct control of the employer and may not be fluent in Delaware law. Importantly, the new law clarifies that “interviewing and hiring for a single position shall constitute a single violation.” In other words, if an employer uses an application or interview questionnaire that asks a prohibited question for a single position, regardless of the number of job candidates that may be subject to the prohibited question, there would only be one violation. The new law provides the Delaware Department of Labor (“DDOL”) the right to enforce and impose civil penalties for any violations of the new law. An employer or employer’s agent that violates the new law is subject to a civil penalty of not less than $1,000 nor more than $5,000 for the first offense and not less than $5,000 nor more than $10,000 for each subsequent violation. The DDOL also has authority to file a civil penalty claim stemming from any violation of the new law against the employer in a court of competent jurisdiction. Delaware’s law will be effective December 2017. The new law requires the DDOL to post requirements of the law on its website and perform “outreach as necessary to educate employers of the requirements …” As such, Delaware employers should keep a keen eye on the DDOL’s efforts to ensure compliance with the new law. Further, employers should be on the lookout for a potential legal challenge to the validity of the law under the First Amendment, like the one currently pending regarding the Philadelphia salary history ordinance.

Florida Preserves Employer Protections in Medical Marijuana Bill
Voters in the November 8, 2016, general election in the state of Florida approved the Florida Medical Marijuana Legalization Initiative. On June 9, 2017, a bill was sent to Governor Rick Scott for his signature (SB 8-A). Scott said he “absolutely” intends to sign the medical marijuana bill passed by the state legislature. The bill will be effective upon Scott’s signing the bill, and will take effect upon becoming a law. The amendment states that laws must be in place by July 3, 2017, and enacted by October of 2017. Scott should be able to sign the bill ahead of the first deadline. While many aspects of the bill have been reported on, the most important section of the bill for Florida employers has received scant attention. Section 381.986 of the Florida Statutes has been amended to provide: This section does not limit the ability of an employer to establish, continue, or enforce a drug-free workplace program or policy. This section does not require an employer to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana. This section does not create a cause of action against an employer for wrongful discharge or discrimination. Marijuana, as defined in this section, is not reimbursable under chapter 440. Court challenges are likely, most certainly on the aspect of the legislation that precludes actual smoking of marijuana. It is unclear what the result of a court challenge would be on the section that excludes smoking. The constitutional amendment provides that “[n]othing in this section shall require any accommodation of any on-site medical use of marijuana in any correctional institution or detention facility or place of education or employment, or of smoking medical marijuana in any public place.” In any event, the legislation gives Florida employers some degree of protection if they do not want intoxicated employees on their worksites. This is also consistent with the federal Department of Transportation rule that medical review officers will not verify a drug test as negative based upon information that a physician recommended that the employee use medical marijuana. Under those rules, “[i]t remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.”

California’s Fair Employment and Housing Act (FEHA)
A reminder for California employers that California’s Department of Fair Employment and Housing regulations go into effect next month. The regulations restrict employers ability to consider criminal history information when making employment decisions and could lead to violations of California’s Fair Employment and Housing Act (FEHA). The effective date of the regulations is July 1, 2017. The Final Statement of Reasons states that the FEHA “prohibits employers from utilizing criminal records and information in employment decisions if doing so would have an adverse impact on individuals on a basis enumerated in the Act that the employer cannot prove is job-related and consistent with business necessity or if the employee or candidate has demonstrated a less discriminatory alternative means of achieving the specific business necessity as effectively.” Sounds an awful lot like the federal Equal Employment Opportunity Commission’s position/guidance on the use of criminal history records for employment purposes. Final text of the regulations can be found at: https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/06/FinalText-CriminalHistoryEmployDecRegulations.pdf

International Developments

Amendments to Japan’s Data Protection Law
On May 30th, amendments to Japan’s Act on the Protection of Personal Information took effect. Amendments include: • Creation of the Personal Information Protection Commission as a central, independent regulatory authority with enforcement powers; • Two new classifications of data for data transfers: sensitive information, which requires consent before data transfers, and anonymized information, which is de-identified and can be transmitted without consent from the individual; • Companies may allow consumers to opt-out of data transfers instead of requiring them to opt-in; and • Companies transferring personal information outside of Japan’s borders need the user’s consent, with certain exceptions.

South Korea Privacy
On June 12th, South Korea joined the Asia-Pacific Economic Cooperation (APEC) Cross-Border Privacy Rules (CBPR) system. The CBPR system, which is endorsed by APEC countries, helps to facilitate e-commerce among APEC countries and protects the privacy of citizens’ personally identifiable information (PII). South Korean businesses are now required to implement privacy policies that are compliant with the 2004 APEC Privacy Framework.

GDPR Implementation
The Article 29 Working Party released more information relating to its recent work regarding records transferred to “non-adequate” third countries’ financial authorities and details on the release of further guidance on GDPR implementation (IAPP).

Mexican President Signs Medical Marijuana Legalization Decree
June 23, 2017 – Mexican President Pena Nieto made it official this week: His nation is the latest to legalize cannabis for medical purposes. Many of the details of the country’s MMJ program are still unclear, and it seems that only low-THC marijuana will be permitted. The new Mexican law was approved overwhelmingly by the Senate and Lower House of Congress, The Washington Post reported, and the next step is for the Ministry of Health to craft regulations on how the program will operate and how patients will obtain MMJ. Critics of the law say it doesn’t go nearly far enough, and even former Mexican President Vicente Fox called for full legalization at a cannabis business conference in Oakland, California, earlier this month.


Credit Reports Soon Won’t Include Some Tax Lien, Civil Judgment Data
Millions of consumers could soon see their FICO credit scores increase as the three credit reporting agencies – Equifax, Experian, and TransUnion – take another step to overhaul their systems by excluding certain negative information related to tax liens and civil judgments from credit reports. The Wall Street Journal reports that starting July 1 the CRAs will remove tax lien and civil judgment data from reports if the information does not provide complete details on consumers. For example, the marks will be removed if the data does not include a person’s name, address, Social Security number, or date of birth. Additionally, if public court records aren’t checked for updates on lien and judgment information – such as cases where a debt collection firm has taken a consumer to court – at least every 90 days, they will have to be removed from credit reports. The decision is estimated to improve the credit reports of roughly 12 million U.S. consumers, the WSJ reports, citing FICO data. However, the resulting increases will likely be modest, with FICO projecting that around 11 million will see an increase of just 20 points. Another 700,000 people are expected to see a higher boost of more than 40 points. Analysts warn that not providing the tax-lien and civil judgment information on reports could put lenders – and borrowers – at risk. “It’s going to make someone who has poor credit look better than they should,” John Ulzheimer, a credit specialist and former manager at Experian and credit-score creator FICO, tells the WSJ. “Just because the lien or judgment information has been removed and someone’s score has improved doesn’t mean they’ll magically become a better credit risk.” In fact, LexisNexis Risk Solutions has previously found that people with liens and judgments are twice as likely to default on loan payments. The changes were made, in part, as a response to the pressure the CRAs have felt in recent years related to incorrect information appearing on consumers’ credit reports. Each year, thousands of consumers file complaints against Equifax, Experian, and TransUnion. Most of these complaints are related to incomprehensive information on a consumers’ credit report and the difficult time they often have in getting this misinformation corrected. If the information continues to appear on the reports, it can affect a consumers’ ability to obtain credit, and prevent them from renting homes or receiving consideration for employment. In recent years, lawmakers have attempted to overhaul the credit reporting system with legislation that would aim to change how long negative information remains on a consumers’ report. While those attempts haven’t come to fruition, the CRAs have made changes of their own, the WSJ reports, with the companies removing some negative data sets from reports, such as non-loan related items that were sent to collections firms and collection information that has been paid by a patient’s insurance company from reports

Please Note: Some of the information contained herein is a monthly summary of the daily information provided by Arnall Golden Gregory LLP, an Atlanta firm servicing the business transactions and litigation needs of background check companies. The information described is general in nature, and may not apply to your specific situation. Legal advice should be sought before taking action based on the information contained herein. For more information about Arnall Golden Gregory LLP, please visit www.agg.com or contact Bob Belair at 202.496.3445 or robert.belair@agg.com.


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