Employment Law Daily No FCRA violation; employer reasonably reinvestigated its report of trucker’s unsafe driving
Friday, July 15, 2016

No FCRA violation; employer reasonably reinvestigated its report of trucker’s unsafe driving

By Lorene D. Park, J.D. Affirming summary judgment against a truck driver’s claim that his former employer violated the Fair Credit Reporting Act by erroneously reporting that he had an unsatisfactory safety record (Code 938), the Tenth Circuit explained that because he disputed only that the record was "incorrect" as he had "no accidents/incidents listed on the report," it was reasonable for the HR representative who investigated his challenge to focus solely on his record and to rely on the information provided, including an Illinois police report that he was speeding, before telling a consumer reporting agency that the information was correct (Maiteki v. Marten Transport Ltd, July 13, 2016, Hartz, H.). Employer sends "Unsatisfactory" code to reporting agency. The employee worked as a truck driver for the transportation company from March to December 2011. His employer had a duty under federal regulations to perform background checks on drivers and therefore exchanged information with HireRight, a consumer reporting agency that publishes "Drive-A-Check" (DAC) reports on driving records. When describing the employee’s work record to HireRight after his employment ended, the employer used code 938, which stands for "Unsatisfactory Safety Record" (meaning he did not meet the company’s safety standards). Rejected by other employers. According to the employee, other companies refused to hire him after the employer’s information appeared on his DAC report. He disputed the information, informing HireRight that the code was incorrect because he had "no accidents/incidents listed on the report." HireRight asked the employer to check its records to determine if it had made an error and to send support for its stated code. HR rep investigates. An HR representative investigated and found that the employee’s personnel file contained a July 16, 2011, driver/vehicle examination report by the Illinois State Police stating that he had traveled between six and ten miles per hour over the speed limit. Accompanying the report was a written police warning indicating the employee was speeding. The file also included a written warning from the employer placing the employee on a six-month probation for this incident. In the employer’s HR Image Screen (HRIS) records, the HR rep saw comments dated October 5, 2011, regarding data gathered on the employee’s driving speeds. The speed-monitoring device installed on his truck had recorded him traveling 12 miles per hour over the speed limit that month and as having 13 incidents of driving at least four miles per hour. There was a notation in HRIS from the fleet manager indicating she issued the employee a serious warning based on this data. After confirming the accuracy of the entry with the fleet manager, the HR rep concluded that the information sent to HireRight was correct and reported as much. Reinvestigation was adequate under FCRA. In the employee’s subsequent suit under the FCRA, he claimed that the employer’s reinvestigation was inadequate and the response false. The district court granted summary judgment for the employer and the Tenth Circuit affirmed. Under 15 U.S.C. §1681s-2(b)(1), when a consumer reporting agency notifies a furnisher of information (such as the employer here) of a dispute, the furnisher must take the following steps: (1) investigate the disputed information (2) review all relevant information provided by the reporting agency; (3) report the results of the investigation to the agency; (4) if the information was inaccurate, also report the information to all other consumer reporting agencies; and (5) modify, delete, or permanently block reporting of the disputed information if it was inaccurate, incomplete, or unverifiable. The appeals court noted that the investigation must have been a "reasonable one," which means one that a "reasonably prudent person" would have undertaken. The employee argued that reasonableness is a fact issue only to be decided by a factfinder. Disagreeing, the appeals court explained that summary judgment would be proper if the reasonableness of the employer’s procedure was beyond question. Such was the case here. Reasonable to focus on employee’s record. The employee’s notice of dispute simply stated that use of Code 938, Unsatisfactory Safety Record, was "incorrect" because he had "no accidents/incidents listed on the report." It was therefore reasonable for the employer to focus on whether there were incidents of record that supported its report to HireRight. The employee argued that the employer should have reviewed other sources of information, but that would not have negated the Illinois warning or recorded speed data that led the HR rep to conclude that Code 938 was accurate. Also, because the HR rep had no reason to question the documents, her failure to contact the Illinois State Police did not cast doubt on the reasonableness of her investigation. The Tenth Circuit recognized that the Fourth Circuit has held that a jury could find unreasonable a procedure requiring agents to rely solely on computer data and "never consult underlying documents" for verification, but in this case, instead of relying on the bare HRIS data, the HR rep contacted the fleet manager, who confirmed the data’s accuracy. Moreover, the evidence showed that the employer would have considered the Illinois incident (police warning) sufficient to support a Code 938 report to HireRight. Based on the foregoing, summary judgment was appropriate.

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