With FCRA lawsuit filings on the rise, it’s nice to know that there are some FCRA suits against employers that can be overcome. Moore v. Rite Aid Headquarters Corp. is such a case. Moore applied for employment with Rite Aid and, as part of the application process, Rite Aid obtained a background check on her. Based on the background check and Rite Aid’s scoring criteria, she was considered “ineligible for hire,” and a pre-adverse action letter was sent to her. The pre-adverse action letter explained her right to dispute the accuracy of her background report and how to do it. After receiving the pre-adverse action letter, Moore spoke with Rite Aid to discuss her background, but despite this conversation five days later, Rite Aid’s background check provider sent her an adverse action notice.
In her lawsuit, Moore alleged that Rite Aid violated the pre-adverse action provision of the FCRA by taking adverse action against her without waiting the “full five day period” set forth in the pre-adverse action letter. She also alleged that since Rite Aid never hired an applicant who failed Rite Aid’s scoring criteria, her “ineligible to hire” score was the final employment decision and the actual adverse action. She claimed that the pre-adverse action letter was not “pre”, rather an adverse action notice which did not give her the ability to significantly dispute her record.
The court dismissed her claim, finding that Moore did not suffer any injury-in-fact based on Rite Aid’s conduct. According to the court, the FCRA’s pre-adverse action requirements were made to so that employees would have time to discuss their background before a final decision is made. In this case, Moore was able to discuss her background report with Rite Aid after receiving the pre-adverse action letter and before Rite Aid made the final decision not to hire her. According to the court, even if Rite Aid did not wait the full five-business-day period as mentioned in the pre-adverse action letter, it would not violate the FCRA as she already had a chance to dispute her report. Rite Aid heard her side of the event that made her “illegible for hire” but did not act unreasonably “in making a final employment decision prior to the expiration of the five days referenced in the Pre-Adverse Action Notice.”
Although not every FCRA case will result in a dismissal for lack of standing, this case shows it can happen if one or more of the violations the plaintiff alleges caused no concrete harm. Moore v. Rite Aid Headquarters Corp. is a welcome reminder for employers that seemingly endless FCRA lawsuits be defeated.