June 9, 1998
David G. Islinger, Esq.
Jackson, Lewis, Schnitzler & Krugman
60 Washington Street
Morristown, New Jersey 07960-6844
Re: Section 603(d) of the Fair Credit Reporting Act
Dear Mr. Islinger:
This is in response to your letter requesting the staff's opinion on a number of issues raised by the recent amendments to the Fair Credit Reporting Act (FCRA). Specifically, you ask whether reports received from a consumer reporting agency (CRA) regarding a consumer's criminal record and education, and any licenses held by the consumer are covered by the FCRA. You also inquire as to the status of drug tests obtained from a drug testing laboratory.
1. Do criminal background checks, educational background checks, and license checks provided by CRAs constitute consumer reports?
Yes. The definition of "consumer report" in Section 603(d)(1) is broad and includes information about an individual consumer's "character, general reputation, personal characteristics, or mode of living" when made by a CRA. Criminal histories, education, and licenses held by consumers all involve one or more of these factors. Accordingly, when CRAs provide such information, they are providing consumer reports and must comply with the FCRA. We note that a CRA that collects and provides factual information of the type discussed above, obtained through interviews with friends, neighbors, associates, or others with knowledge of the consumer, is making a particular type of consumer report known as an "investigative consumer report." In that case, the CRA must follow the procedures set forth in Section 606 specifically for "investigative consumer reports" as well as those contained in Section 604(b) for "consumer reports." These procedures are discussed in the attached staff opinion letter (Beaudette, 6/9/98).
2. Are drug tests consumer reports?
When a drug lab provides the results directly to the employer, the test is not a "consumer report" under the FCRA. When an intermediary does so, a detailed factual analysis is needed to determine the answer. When a CRA provides the test results, it is clearly making a "consumer report" to the employer. We explain these responses below.
As discussed in response to your first question, the definition of "consumer report" in the FCRA covers a great deal of information other than credit information. Drug tests do bear on an individual's character, general reputation, personal characteristics, or mode of living. However, Section 603(d)(2)(A) of the FCRA excludes from the definition of "consumer report" any report "containing information solely as to transactions or experiences between the consumer and the person making the report." Since drug test reports constitute reports based on the experience of the laboratory (applying scientific methods to test urine or other samples from the consumer), these reports are not "consumer reports" covered by the FCRA when they are provided directly to the employer by the laboratory. The court in Hodge v. Texaco, Inc., 975 F.2d 1093, 1096 (5th Cir. 1992), reached the same conclusion.
Where an intermediary such as a drug counselor reports the results of a test done by a lab, the issue of whether the communication is a "consumer report" covered by Section 603(d) requires a detailed review of the facts. The "transactions or experiences" exception does not apply to the intermediary because the intermediary does not perform the analysis. The answer, therefore, turns on whether the intermediary is a "consumer reporting agency" as defined in Section 603(f) of the FCRA.(1) A party that "regularly engages . . . in the practice of assembling or evaluating . . . information on consumers for the purpose of furnishing consumer reports to third parties" is a CRA under that definition. If an intermediary contributes to (or takes any action that determines) the content of the information conveyed to an employer, we believe it is "assembling or evaluating" the information and thus qualifies as a CRA. However, if the inter-mediary is like the drug counselor in Hodge case cited above (975 F.2d at 1097) who simply "acted as a go-between" between the employer and drug lab, it does not appear to be a CRA. Thus, an intermediary that provides only mechanical services (such as arranging for a lab test, collecting and forwarding samples to the lab, and transmitting test results) probably would not be a CRA making a "consumer report." At the other end of the scale, an intermediary that retains copies of tests performed by drug labs and regularly sells this information to third parties for a fee is a CRA whose reports of drug test results are "consumer reports" covered by the FCRA.
If a drug test report is provided by a party that is indisputably a CRA because of the general nature of its business (e.g., a credit bureau or employment screening service), the report would clearly be a "consumer report" because the communication is made by a CRA and not covered by any of the exemptions from the definition set forth in Section 603(d).
I hope that this information is helpful to you. The opinions set forth in this letter represent the views of the staff of the Commission and do not necessarily represent the views of the Commission or any particular Commissioner.
Division of Credit Practices
1. As mentioned in our answer to question #1 above, one of the elements in the "consumer report" definition is that the communication be made by a CRA.