Under the Fair Credit Reporting Act, when an employer is considering rejecting an applicant based on a background check (often referred to as a consumer report), it must follow certain “pre-adverse” action procedures.  Specifically, an employer must provide the applicant with a copy of his or her background check and a summary of rights under the FCRA, prior to taking “adverse action.”  In Wright v. Lincoln Property Company, the District Court for the Eastern District of Pennsylvania definitively found that an employer is only obligated to send the applicant a copy of these documents; whether the applicant actually receives them is irrelevant.

Plaintiff Lemuel Wright applied for a job with defendant Lincoln Property Company as a maintenance technician.  In connection with this application, Lincoln procured a background check on Wright.  Lincoln sent Wright an “in progress” copy of the background check that it had obtained from its background check vendor, along with a summary of rights under the FCRA.  According to Lincoln, it sent this background check to the address where Wright lived and received mail at the time of his application.  Wright, on the other hand, argued that the mailing of the background check does not satisfy the FCRA because he never actually received it.

The Court disagreed with Wright, noting that nothing in the text of the FCRA requires companies to ensure that a job applicant actually receives his or her pre-adverse action documentation.  Rather, the statute simply requires the employer to “provide” the information.  In the Court’s view, “[t]here is nothing in the statute” “establishing a requirement that the entity intending to take adverse actions take measures to ensure receipt.”

Despite this ruling, however, the Court denied Lincoln’s motion for summary judgment.  Because the background report that Lincoln sent to Wright was an “in progress” version and not the final version, the Court held that there was an issue of fact as to whether Lincoln satisfied the requirements of the FCRA.  This was the case, in the Court’s view, despite the fact that “[t]here are no material differences between the criminal history included” in the “in-progress” report and the “final” report.