New Amendment May Soon Affect FCRA Pre-Adverse Action Notice Requirements

Fair Credit Reporting Act (FCRA) class action lawsuits against employers are reaching epidemic proportions as class-wide settlements encourage more lawyers to move into this niche practice area.1 Because most of the opinions tend to come from trial courts, definitive guidance for employers is lacking. What’s more, the plaintiff’s bar may attempt to use a new amendment to the FCRA to argue that employers have additional duties under the FCRA’s “pre-adverse action” notice provisions (15 U.S.C. § 1681b(b)(3)). However, on closer scrutiny, as described below, this argument appears to be “creative” at best.