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Wednesday, May 27, 2009

15 U.S.C. 1681a - part 7

This post explains 15 U.S.C. 1681a(o) of the Fair Credit Reporting Act, which reads:

"(o) Excluded communications. A communication is described in this subsection if it is a communication"

[A communication must meet all of the following criteria (i.e. 1 through 5) to be considered "excluded"]

"(1) that, but for subsection (d)(2)(D), would be an investigative consumer report;

(2) that is made to a prospective employer for the purpose of

(A) procuring an employee for the employer; or

(B) procuring an opportunity for a natural person to work for the employer;

(3) that is made by a person who regularly performs such procurement;

(4) that is not used by any person for any purpose other than a purpose described in subparagraph (A) or (B) of paragraph (2); and

(5) with respect to which

(A) the consumer who is the subject of the communication

(i) consents orally or in writing to the nature and scope of the communication, before the collection of any information for the purpose of making the communication;

(ii) consents orally or in writing to the making of the communication to a prospective employer, before the making of the communication; and

(iii) in the case of consent under clause (i) or (ii) given orally, is provided written confirmation of that consent by the person making the communication, not later than 3 business days after the receipt of the consent by that person;

(B) the person who makes the communication does not, for the purpose of making the communication, make any inquiry that if made by a prospective employer of the consumer who is the subject of the communication would violate any applicable Federal or State equal employment opportunity law or regulation; and

(C) the person who makes the communication

(i) discloses in writing to the consumer who is the subject of the communication, not later than 5 business days after receiving any request from the consumer for such disclosure, the nature and substance of all information in the consumer's file at the time of the request, except that the sources of any information that is acquired solely for use in making the communication and is actually used for no other purpose, need not be disclosed other than under appropriate discovery procedures in any court of competent jurisdiction in which an action is brought; and

(ii) notifies the consumer who is the subject of the communication, in writing, of the consumer's right to request the information described in clause (i)."

[This definition is a long winded way of saying that what would normally be an investigative consumer report is not one if it is regarding a prospective employee who consents to being investigated before the investigation (i.e. information gathering) is begun. The person/company creating the consumer report must not make any inquiry regarding the consumer that would violate any Federal or State equal employment opportunity law or regulation. The person generating the consumer report must also produce it to the consumer upon request.]

I will pick up with 15 U.S.C. 1681a(p) in part 8.

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