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Abstract

In our previous article, "Holding Credit Reporting Agencies Accountable: How the Financial Crisis May be Contributing to Improving Accuracy in Credit Reporting" we reviewed the legal history of the Fair Credit Reporting Act (FCRA), its amendments, and the federal case law by circuit. We suggested that the ability of consumers to ensure the accuracy and security of their credit reports might lead to an expansion of the litigation surrounding accurate credit reporting. This article takes the discussion further by exploring the ever-expanding use of credit reports in the employment law arena. We review the state legislation limiting the use of credit reports by employers, the exceptions to these state statutes, and litigation related to those laws to date. This analysis is followed by an examination of the federal legal landscape and broader legal issues related to the use of credit reports, including whether the use of credit reports by employers discriminates against various protected groups. We conclude with a summary of our research, draw conclusions, and point to areas that should be explored in the future, and also speculate, based on a case from the US Court of Appeals for the 4th Circuit that we discuss, that this consequence could once again operate to increase the accuracy of credit reporting and hold those agencies more accountable.

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