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Fair Credit Reporting: 8.8.3.2 Time and Manner of Notice

The CRAs must annually publish notice of the existence of the toll-free system that consumers may use to opt out of prescreening.473 Within five days of receipt of a notice over the toll-free telephone system from the consumer, the CRA must send a notice to opt out and an exclusion form to the consumer.474

Fair Credit Reporting: 8.9 Negative Information Notices

The FCRA requires a one-time consumer notice when a financial institution furnishes negative information about that customer.478 However, a financial institution may take advantage of a safe-harbor provision if it maintained reasonable compliance policies and procedures or reasonably believed that it was prohibited from contacting the consumer.479 For a discussion of which entities are covered by this requirement, see

Fair Credit Reporting: 8.10.1.1 Generally

Following the completion of a reinvestigation of disputed information in the consumer’s credit file, the consumer reporting agency must send a notice to the consumer.487 This notice informs the consumer not only of the results of the investigation, but also the consumer’s further rights. As such, the notice provides the consumer with the opportunity to lodge a further dispute and take limited steps to address a CRA’s refusal to remove disputed information.

Fair Credit Reporting: 8.10.1.2 Nature and Content of Notice

The CRA must send a written notice informing the consumer of the results on the reinvestigation.488 In addition, it must include in its notice (or in a separate notice sent within five days of concluding the reinvestigation) information about the reinvestigation process, including the following:

Fair Credit Reporting: 8.10.1.3 Time and Manner of Notice

The CRA must notify the consumer of the results of the reinvestigation within five days of completing the reinvestigation.498 The notice must be in writing and sent by mail unless the consumer has authorized the CRA to notify the consumer by a different method.499 At least one court has held that the CRA need not disclose a complete copy of the consumer’s file following the reinvestigation, but may instead provide a copy of those portions of the report that were reinvestigated.

Fair Credit Reporting: 8.10.1.4 Enforcement

The failure of a CRA to deliver the prescribed notice is subject to the usual private remedies of the FCRA under 15 U.S.C. §§ 1681n and 1681o. Unlike a number of the other notice provisions under the FCRA, the failure to provide the notice of result can readily and foreseeably cause actual damages to the consumer. Consumers are regularly advised to check their consumer reports and correct their files before applying for credit or concluding a credit transaction.

Fair Credit Reporting: 8.10.2.1 Generally

One of the most frustrating and pernicious reporting abuses has been the reappearance in a consumer’s file of inaccurate or incomplete information that was previously deleted.

Fair Credit Reporting: 8.10.2.3 Time and Manner of Notice

The basic notice may be given in writing or by any other means authorized by the consumer.508 The detailed notice, however, must in writing.509 The FCRA authorizes CRAs to send these two notices at the same time,510 and as a practical matter it is likely that these notices will be combined and sent in writing to the consumers.

Fair Credit Reporting: 8.10.3.1 Nature and Content of Notice

A consumer reporting agency need not conduct a reinvestigation of every dispute tendered by a consumer. The FCRA provides that a CRA may terminate a reinvestigation of disputed information if it reasonably determines that the consumer’s request is frivolous or irrelevant.513 Under this standard, the CRA may not simply reject a notice out of hand. Rather, its determination must be reasonable under the circumstances. If the CRA makes that determination, it must notify the consumer and provide two pieces of information.

Fair Credit Reporting: 8.10.3.2 Time and Manner of Notice

A CRA must notify consumers of its determination within five business days of finding the request to be frivolous or irrelevant. The notice must be in writing and sent by mail, unless the consumer has authorized another means of communication.516

Fair Credit Reporting: 8.10.3.3 Enforcement of Notice Rights

The determination that a request is frivolous or irrelevant is not without limitation. Rather, that determination must be reasonable.517 To the extent that the determination is not reasonable or is not followed by an appropriate notice, the CRA is subject to the usual civil remedies including actual damages, statutory damages, punitive damages, costs, and attorney fees.518

Fair Credit Reporting: 8.10.4 Notice to Consumer If Agency Refuses to Block Alleged Identity Theft Information

Under the FCRA, consumers have the right to seek a block on the reporting of information resulting from identity theft.519 If a CRA declines to block identity theft information or rescinds a block, it must notify the affected consumer promptly.520 The CRA must make this notification in the same manner that it notifies consumers when information is reinserted into their file upon certification of accuracy.521 In turn, the FCRA requires CRAs to notif

Fair Credit Reporting: 8.11.1.1.1 Summary of notices

A number of notices are required when consumer reports are used for employment purposes. This section discusses each of these notices. Further discussion of the requirements for employment use of consumer reports is discussed in § 7.2.4, supra.

Fair Credit Reporting: 8.11.1.2.1 Investigation of employee misconduct

The FCRA excludes certain communications made to an employer concerning investigations for employee misconduct or for compliance reasons from the definition of a “consumer report.”539 To fall within the exclusion, the communication must be made to an employer and must be in connection with an investigation of one of the following:

Fair Credit Reporting: 8.11.1.2.2 Truckers

Under the so-called “trucker’s amendment,” an employer regulated by the Secretary of Transportation or subject to certain state safety regulations may be permitted to obtain the consumer’s authorization orally and provide the pre-adverse action notice orally.545 In addition, an employer is not statutorily obligated to provide, in a stand-alone format,546 the disclosure that a consumer report may be obtained to an individual completing an online application for a truck-driving job.

Fair Credit Reporting: 8.11.1.2.3 Federal agencies involved in national security

A group of employers that may be exempted from the pre-adverse notice rules are federal agencies and departments that use a consumer report for employment purposes, if the report is relevant to a national security investigation.552 The federal agency head must take precise steps for this exemption to apply. Furthermore, upon the conclusion of the investigation, notice of adverse action and a copy of the report (redacted if necessary) must be given to the consumer.553

Fair Credit Reporting: 8.11.1.2.4 Employment agencies

Information communicated by an employment agency to a prospective employer may be excluded from the definition of a consumer report. Consequently, an employer who declines to hire a consumer based on a recommendation by an employment agency, even if the decision is based on information gleaned by the agency from a consumer report, may not be required to make any disclosure of adverse action.

Fair Credit Reporting: 8.11.2.1 Nature and Form of Authorization and Notice

Prior to using a consumer report in connection with employment, the user/employer must give notice to the consumer that it may use a consumer report for such purposes.558 In addition to the notice, the employer must also obtain written authorization from the employee to access the consumer report.559 Delegating the obligation to provide notice and obtain the consumer’s consent to a third-party agent may not violate the FCRA.560

Fair Credit Reporting: 8.11.3.1 Nature and Content of Notice

Under the FCRA, employers are required to provide notices before taking any adverse employment action whenever that decision is based, even just in part, on a consumer report.605 Employers are required to make this disclosure any time they deny initial employment, promotion, or job transfer to an employee.606 Whether the employer relied on the consumer report, in whole or in part, may be an issue of fact not resolvable at the dismissal or summary judgment stage.