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The most common ICRAA errors and violations

This page contains the most common errors and violations of the ICRAA during procurement and preparation of MOST investigative consumer reports (ICR).

FIRST MOST ENCOUNTERED VIOLATION OF ICRAA  

VIOLATION OF SECTION §1786.16

Prior to obtaining an investigative consumer report an employer or user of the report MUST provide the employee what is referred to as a consent disclosure.

Section 1786.16 (2)(B)(iv) of the ICRAA provides in relevant part that the consent disclosure MUST contain the name, address, and telephone number of the company that will be preparing the ICR.  If the consent disclosure is missing any of the previously mentioned information it is a violation of the ICRAA for the employer to procure the report.  

An employer is only authorized to procure and ICR with a compliant consent disclosure.  Even if the employee has signed the non-compliant consent disclosure it is still a violation of the ICRAA to procure the ICR without first obtaining a compliant disclosure signed by the employee.

1786.16 (2)(B)(iv)

Any person described in subdivision (d) of Section 1786.12 shall not procure or cause to be prepared an investigative consumer report unless the following applicable conditions are met:

(2) If, at any time, an investigative consumer report is sought for employment purposes other than suspicion of wrongdoing or misconduct by the subject of the investigation, the person seeking the investigative consumer report may procure the report, or cause the report to be made, only if all of the following apply:

(B) The person procuring or causing the report to be made provides a clear and conspicuous disclosure in writing to the consumer at any time before the report is procured or caused to be made in a document that consists solely of the disclosure, that:

(iv) Identifies the name, address, and telephone number of the investigative consumer reporting agency conducting the investigation.

EXAMPLE #1

The first example below contains a completely compliant consent disclosure received from LYFT.  The consent disclosure contains the required name, address & telephone number of the consumer reporting agency (CRA) that will be completing the report and it also contains the required check box option allowing the consumer to request a copy of the report.  

Another critical component that is required to be contained in the consent disclosure is a check box allowing the employee to request a copy of the report.  Section 1786.16(5)(b)(1) of the ICRAA provides in relevant part that a check box is required and if requested by the consumer/employee that the recipient will send a copy of the ICR within three business days of receipt.  

It is extremely common for either the check box to not be contained in the consent disclosure or for the report not to be sent to the employee within the required three business days of receipt by the requestor.

To protect yourself as a consumer it is recommended that you ALWAYS request for a copy of the report when the check box is provided.  It is also recommended that you review the report when you receive it for completion date and adherence to the three-business day requirement.   MOST reports contain an order date and completion date on the cover page of the report.   By looking at the post mark on the envelope it is easy to determine if the employer or requestor of the report complied with the three-business day requirement of delivery under this section.  

1786.16(5)(b)(1)

(a) Any person described in subdivision (d) of Section 1786.12 shall not procure or cause to be prepared an investigative consumer report unless the following applicable conditions are met:

(5) The person procuring the report or causing it to be prepared agrees to provide a copy of the report to the subject of the investigation, as provided in subdivision (b).

(b) Any person described in subdivision (d) of Section 1786.12 who requests an investigative consumer report, in accordance with subdivision (a) regarding that consumer, shall do the following:

(1) Provide the consumer a means by which the consumer may indicate on a written form, by means of a box to check, that the consumer wishes to receive a copy of any report that is prepared. If the consumer wishes to receive a copy of the report, the recipient of the report shall send a copy of the report to the consumer within three business days of the date that the report is provided to the recipient, who may contract with any other entity to send a copy to the consumer. The notice to request the report may be contained on either the disclosure form, as required by subdivision (a), or a separate consent form. The copy of the report shall contain the name, address, and telephone number of the person who issued the report and how to contact them.

EXAMPLE #2

The second example below obtained from Comerica Bank contains a deficient consent disclosure and if a background report had been procured by the employer utilizing this form it would be a violation of California Civil Code section 1786.16.   Although the below example does contain the required name, address & telephone number of the CRA to be completing the report it does not contain the necessary check box.   The check box that is contained does not allow the employee to request a copy of the report and therefore is deficient.  

EXAMPLE #3

The third example below is a consent disclosure obtained from Price Simms Auto Group and is non-compliant because it does not contain the required name, address & telephone number of the CRA that will be used to procure the ICR.  Similar to example #2 this consent disclosure is partially compliant because it does contain the required check box allowing the consumer to request a copy of the background report.  

Example #2 & 3 are both partially compliant and partial compliance is never acceptable under the ICRAA.  If an employer would procure a background report with the non-compliant consent disclosure the employer would be liable to the consumer/employee for Ten Thousand dollars ($10,000) or actual damages whichever is greater. a

NOTE:  THIS STATUTE DOES NOT REQUIRE DAMAGES TO BE PROVEN TO SUCCESSFULLY LITIGATE A CLAIM FOR VIOLATION. 

SECOND MOST ENCOUNTERED VIOLATION OF ICRAA  

VIOLATION OF SECTION §1786.29

The second most encountered violation of the ICRAA that has been observed by the creators of this website is a violation of section § 1786.29The language of § 1786.29 has been provided below and it unequivocally requires that the preparer of the report provide a notice on the first page of the ICR in at least 12-point boldface font.   The type of font is not relevant but the size must be at least 12 point.

Typically, when encountering this violation occurs it is because the font is deficient in size or alternatively that the disclosure is on the last page of the report or entirely missing.

 §1786.29

An investigative consumer reporting agency shall provide the following notices on the first page of an investigative consumer report:

(a) A notice in at least 12-point boldface type setting forth that the report does not guarantee the accuracy or truthfulness of the information as to the subject of the investigation, but only that it is accurately copied from public records, and information generated as a result of identity theft, including evidence of criminal activity, may be inaccurately associated with the consumer who is the subject of the report.

EXAMPLE OF COMPLIANT DISCLOSURE – BELOW (OpenSans 13.5 boldface font)

California Applicants/Employees Only: The report does not guarantee the accuracy or truthfulness of the information as to the subject of the investigation, but only that it is accurately copied from public records, and information generated as a result of identity theft, including evidence of criminal activity, may be inaccurately associated with the consumer who is the subject of the report. An investigative consumer reporting agency shall provide a consumer seeking to obtain a copy of a report or making a request to review a file, a written notice in simple, plain English and Spanish setting forth the terms and conditions of his or her right to receive all disclosures, as provided in Section 1786.26.

Sólo para los Solicitantes/Empleados de California: En el informe no se garantiza la exactitud o veracidad de la información en cuanto al tema de la investigación, sino sólo que se ha copiado exactamente de los registros públicos, y la información generada como resultado del robo de identidad, incluyendo las pruebas de una actividad delictiva, podría estar incorrectamente asociada con el consumidor que sea el sujeto del informe. Una agencia investigadora de informes de crédito deberá suministrarle a un consumidor que trate de obtener una copia de un informe o solicite revisar un archivo una  notificación por escrito en inglés y español lisos y llanos, en la que se establezcan los términos y las condiciones de su derecho a recibir toda la información, como se dispone en la Sección 1786.26.