In Mattiaccio v. DHA Group, Inc., the plaintiff asserted three counts against his employer and its management under the Fair Credit Reporting Act.  The defendants attempted to defeat the plaintiff’s claim by arguing the background check at issue was not a “consumer report” and, therefore, did not trigger the protections of the FCRA.  Instead, they argued that it was a report of an employee misconduct investigation.  Although the court declined to adopt the defendants’ argument, the misconduct investigation exception remains a viable defense to an FCRA claim.

According to the court’s opinion, the plaintiff was hired in 2011.  By 2012, several of the defendants suspected that the plaintiff had not been candid about his criminal background because he allegedly failed to disclose prior convictions.  The defendants claimed that because of this suspicion, they began investigating the plaintiff’s background through publicly available sources and by ordering a background check.  The plaintiff believed that the defendants’ motivation in conducting the background search was not suspicion of employee misconduct, but actually was retaliation for a complaint the plaintiff had previously filed.

The FCRA is generally only triggered by the creation and/or use of a “consumer report.”  A background check is not a “consumer report” if it is created in connection with an investigation of suspected misconduct relating to employment, among other requirements.  At summary judgment, the defendants sought the protection of this exception by arguing that they were investigating the plaintiff’s misconduct in being “far less than candid” in disclosing his background to his employer.  The plaintiff, on the other hand, argued that the “genuine motivation” in running the background investigation was retaliation for a complaint the plaintiff previously filed in connection with his employment.

The court concluded that there was a factual dispute as to the “genuine motivation” for the background check.  According to the court, this “genuine motivation” is what counts when determining whether an investigation falls within the employee misconduct exception to the definition of a consumer report.  Although the defendants did not prevail on summary judgment in this case, Mattiaccio demonstrates that courts will carefully consider the employee misconduct exception to the FCRA if the defense is supported by the facts.