In Moore v. Rite Aid Headquarters, the District Court for the Eastern District of Pennsylvania ruled that the plaintiff had stated a plausible employment adverse action claim under the Fair Credit Reporting Act.  In doing so, the Court’s decision raises questions about a widely accepted safe harbor of mailing pre-adverse and adverse action notices five business days apart.

In Moore, the plaintiff was mailed a pre-adverse action letter on April 25, 2011.  This letter informed her that the background check that the defendant obtained on her may result in her not being offered the job for which she applied.  The letter also stated that if the defendant “does not hear from you within five (5) business days from the date of your receipt of this letter, then you will not be offered employment.”  On May 2, 2011, five business days after the mailing of the pre-adverse action letter, the plaintiff was mailed an adverse action letter.

The Court concluded that although the adverse action letter was mailed five business days after the mailing of the pre-adverse action letter, the adverse action letter was generated and mailed at most four business days after the plaintiff received the pre-adverse action letter.  Because the plaintiff alleged that this four business day gap between receipt and mailing differed from the five business day reference in the pre-adverse action letter, the Court held that the “failure to actually provide plaintiff with the full response period stated in the initial notice letter is a cognizable claim” under the FCRA.

Waiting five business days to mail an adverse action letter has been generally recognized as compliant with the FCRA.  Although the Court’s decision in Moore was in the context of a waiting period that allegedly conflicted with the period conveyed in the pre-adverse action letter, employers should take note of the Court’s focus on the time between receipt of the pre-adverse action letter and mailing of the adverse action letter when calculating the waiting period.