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The new Consumer Financial Protection Bureau has become the chief enforcer of the Fair Credit Reporting Act (FCRA) and has issued revised FCRA forms employers and consumer reporting agencies must start using no later than Jan. 1, 2013.

The revised forms are available in Appendixes K, M and N at the end of Title 12 at the end of Title 12 of the Code of Federal Regulations, Part 1022.

The revised forms include: Summary of Rights Under the FCRA, Notice to Furnishers of Information: Obligations of Furnishers Under the FCRA and Notice to Users of Consumer Reports: Obligations of Users Under the FCRA.

Each form was revised to replace references to the Federal Trade Commission, which had enforced the FCRA, prior to the Consumer Financial Protection Bureau.   The forms can be accessed at http://tinyurl.com/accx5xw.

When an employer uses consumer reports to make employment decisions such as hiring, promotion and retention, it must comply with the FCRA.  There are several basic procedural requirements that the employer must follow.  First, before obtaining a consumer report the employer must notify the applicant or employee and obtain their written permission.  This notice must be in writing and cannot be incorporated into an employment application.  If the employer wishes to obtain consumer reporting information on the applicant or employee throughout the employment period, the notice must clearly specify the ongoing nature of the consent.

There are also procedural requirements that must be followed by an employer prior to taking any adverse action based upon information obtained through the consumer report.  For example before an employer can reject a job application, or terminate an employee, or take any other adverse employment action based on information in a consumer report, the employer must give the employee notice that includes a copy of the consumer report it relied upon to make the adverse decision and a copy of the Summary of Your Rights Under the Fair Credit Reporting Act.  This advance notice allows the applicant or employee the opportunity to review the report and advise the employer if it is correct.

Finally, there are certain procedural steps employers must take after adverse action is taken based upon information obtained from a consumer report.  Namely, the employer must give notice to the applicant or employee of the adverse action, orally, in writing or electronically.  The notice must include the name, address and phone number of the consumer reporting company that supplied the report as well as a statement that the company that supplied the report did not make the adverse decision and cannot give specific reasons for it.  Additionally the notice must advise of the applicant or employee’s right to dispute the accuracy or completeness of any information the consumer reporting agency furnished and to obtain an additional free report from the company if requested in 60 days.

Kelly Schoening is a Cincinnati attorney practicing at Dressman Benzinger LaVelle psc.

Emily Hanna is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

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