You asked how other states regulate background checks by consumer reporting agencies. You also asked whether states authorize a private cause of action to enforce the law or whether there are other enforcement options.

SUMMARY

Many employers routinely conduct background and credit checks for employment purposes. Consumer reporting agencies who conduct background checks report personal and financial information about the applicant, including matters of public record such as bankruptcies, outstanding judgments, tax liens, and criminal convictions.

The federal Fair Credit Reporting Act (FCRA) (15 U.S.C. § 1681 et seq.) provides guidelines for consumer reporting agencies conducting credit and background checks. Several states have enacted legislation closely modeled after the federal FCRA. The other New England states all provide mechanisms for consumers to challenge inaccurate information contained in a background check or other consumer report. These states also provide for a combination of private causes of action, administrative enforcement, and criminal sanctions to enforce compliance with their consumer reporting requirements.

Of the other New England states, Maine, Massachusetts, and New Hampshire have statutes setting standards for the accuracy of public record information in consumer reports used for employment purposes. Massachusetts requires that consumer reporting agencies maintain reasonable procedures to insure the accuracy of public record information contained in a consumer report.

For information on recent changes to Connecticut law regarding deletion of erased records reported by consumer reporting agencies, see OLR Report 2009-R-0357.

DISPUTING INACCURACIES IN CONSUMER REPORTS OR BACKGROUND CHECKS

The other New England states all provide mechanisms for a consumer to dispute an item in a consumer report or background check prepared by a consumer reporting agency. All of these states except Vermont require that if information contained in a consumer report or background check is later found to be inaccurate, the consumer reporting agency, upon the request of the consumer, must notify prior recipients of the report. The consumer reporting agency must notify any person who received the report within two years for employment purposes or within six months for any other purpose.

The states have different requirements regarding the timeline within which the consumer reporting agency must begin the reinvestigation into the alleged inaccuracy, as well as how long the agency has to delete the information if it is found to be inaccurate. Table 1 describes the requirements in each of the other New England states.

Table 1: Deadlines for Consumer Reporting Agency Following Consumer Dispute

Table 1: -Continued-

CIVIL AND CRIMINAL LIABILITY

The other New England states provide private causes of action for consumers to seek redress for violations of consumer reporting statutes. The states generally allow for greater recovery in the case of willful, as opposed to negligent, violations. Table 2 describes the causes of action available in each state.

Table 2: Civil Liability for Violations of Consumer Reporting Laws

Table 2: -Continued-

The other New England states also provide criminal liability for various violations of consumer reporting laws, including obtaining information under false pretenses or falsifying information in a consumer report. The states also make violations of consumer reporting laws unfair trade practices or deceptive trade practices that are enforced by the state's attorney general or division of consumer protection. The federal FCRA includes similar provisions that are enforced by the Federal Trade Commission (15 U.S.C. § 1681s).

SPECIFIC PROVISIONS APPLICABLE TO PUBLIC RECORD INFORMATION FOR EMPLOYMENT PURPOSES

Maine, Massachusetts, and New Hampshire have statutory provisions outlining standards regarding the accuracy of public record information contained in consumer reports generated for employment purposes. These provisions are modeled closely after the federal FCRA (15 U.S.C. § 1681k). All three states have substantially similar provisions providing that when a consumer reporting agency furnishes a consumer report for employment purposes and reports matters of public record that are likely to have an adverse effect upon the consumer's ability to obtain employment, the consumer reporting agency must: (1) notify the consumer that public record information is being reported, along with the contact information for the recipient of the report, or (2) maintain strict procedures to insure that any potentially adverse public record information is complete and up to date. Records are considered up to date in all three states “if the current public record status of the item at the time of the report is reported” (Me. Rev. Stat. Ann. tit. 10, § 1318; Mass. Gen. Laws ch. 93, § 60; N.H. Rev. Stat. Ann. § 359-B:13).

Massachusetts further requires that consumer reporting agencies maintain reasonable procedures to insure that public record information contained in a consumer report is complete and up to date to the extent practicable. According to the statute, “[i]t shall be deemed a reasonable procedure for a consumer reporting agency to accurately report the status of public record information as of the date recorded in its files provided that such information is updated on a regular basis” (Mass. Gen. Laws ch. 93, § 60A).

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