Labor & Employment Law Daily Wrap Up, PROCEDURE—W.D. Pa.: Job candidate not informed of her of right to challenge information in background report has FCRA standing, (Apr 18, 2025)

By Robert Margolis, J.D.

Candidate suffered “informational injury” that met “injury-in-fact” requirement for Article III standing to bring claim.

When Jewish Residential Services, Inc. rescinded a job offer to a job applicant based on the contents of a background check report, and did not provide her with a free copy of the report so she could dispute its contents as required by the Fair Credit Reporting Act (“FCRA”), she suffered an intangible “informational” injury that meets the requirement for Article III standing to bring an FCRA claim, a federal district court in Pennsylvania has held. The court denied the employer’s motion for summary judgment on the candidate’s FCRA claim. It did grant the employer’s motion as to the candidate’s claim under the Pennsylvania Criminal History Record Information Act (“CHRIA”), finding that the Pennsylvania statute exempts the type of information in the report on which the employer relied (Croley v. Jewish Residential Services, Inc., No. 2:23-cv-00177-NR (W.D. Pa. Apr. 17, 2025)).

The candidate had been offered a position, only to have it rescinded 10 days later after a third-party background check (the “Report”) revealed she had convictions for two state-court summary offenses outside of Pennsylvania. The employer’s subsequent internet search turned up other incidents that also troubled the employer, including two newspaper articles explaining that the candidate had been charged with disorderly conduct and drug-related offenses. After the employer’s Executive Director received this information from its office manager, she informed the candidate her offer was rescinded because of information it learned during the background check. The candidate sued, bringing a claim under the FCRA and another under the CHRIA.

FCRA. The candidate’s FCRA claim asserted the employer violated the statute by not informing her of her right to obtain a free copy of the Report so she could dispute it. See 15 U.S.C. § 1681m(a)(4). The employer did not dispute that it failed to do that, but instead asserted that because the information in the Report was correct, the candidate did not suffer an injury and does not have standing to bring her FCRA claim. The court rejected that argument.

Article III standing requires, among other things, that a plaintiff to have “suffered an injury in fact.” Thorne v. Pep Boys Manny Moe & Jack Inc., 980 F.3d 879, 885 (3d Cir. 2020) (cleaned up). The employer argued the candidate lacked a “concrete” injury-in-fact. But as the court pointed out, intangible “informational” injuries can meet the “injury in fact” requirement. Here, that is the type of injury the candidate was asserting—the employer’s failure to notify her of her right to request a free copy of the Report and to dispute its contents.

Under Third Circuit law, informational injuries are sufficiently concrete to meet the Article III standing requirement when a plaintiff shows (1) omission of information to which she was entitled, (2) adverse effects flowing from the omission, and (3) a nexus to the interest Congress was trying to protect by requiring provision of the information. George v. Rushmore Serv. Ctr., LLC, 114 F.4th 226, 236 (3d Cir. 2024). In this case, FCRA § 1681m(a)(4) entitled the candidate to disclosure of the Report. The candidate also alleged adverse effects, because she had understood the offenses set forth in the Report had been expunged, and she provided sufficient evidence to raise a triable issue that she would have had grounds to dispute the Report. Finally, by failing to disclose the Report, the employer frustrated Congress’s goal of allowing consumers the opportunity to correct inaccurate information in their credit files so it would not be used against them.

Because the candidate suffered a concrete injury-in-fact (and the employer did not challenge the other elements of Article III standing), the court denied the employer’s summary judgment motion on the FCRA claim.

CHRIA. The court granted the employer’s motion as to the CHRIA claim, holding that the information was exempted from that statute. The candidate claimed the employer’s consideration of her criminal history, both as reflected in the Report and the two local newspaper articles, violated the CHRIA. The court found otherwise, holding that none of that information qualifies as “criminal history record information,” which as defined by that statute means information from a “criminal justice agency.”

In particular, the statute exempts information from such sources as Pennsylvania court files and non-criminal justice agencies (typically), as well as information about expunged convictions (from any source). This means an employer is free to consider such information in making an employment decision. The candidate provided no information as to where the summary-offense information in the Report came from, and it looked to the court that it came from online court docket searches, a permissible source under the CHRIA. The candidate’s failure to present evidence as to the source of the information meant she did not raise a triable issue of fact.

Similarly, information gained from newspaper articles is most definitely not information from a “criminal justice agency,” and therefore is also exempt. Finally, because the summary offenses had been expunged, and expunged “criminal record history information” is not “criminal record history information” under the statute “at all,” in the court’s words, the CHRIA was inapplicable to that information as well.

The case is No. 2:23-cv-00177-NR.

Judge: Ranjan, J.

Attorneys: Joshua P. Ward (J.P. Ward & Associates) for Kelly Croley. Dean F. Falavolito (O'Hagan Meyer) for Jewish Residential Services, Inc.

Companies: Jewish Residential Services, Inc.

Cases: Procedure StateLawClaims PennsylvaniaNews