Section 301 of the federal Economic Growth, Regulatory Relief and Consumer Protection Act, which was signed into law on May 24, 2018, amended the Fair Credit Reporting Act (FCRA), effective Sept. 21, 2018, to require consumer reporting agencies (such as those that employers use for applicant and employee background check purposes) to include new language on the Summary of Rights form that explains a consumer’s right to obtain a security freeze to protect against identity theft. The statutory language states that “a security freeze shall not apply to the making of a consumer report for use of the following: … (I) Any person using the information for employment, tenant, or background screening purposes.”

Nevertheless, when the Bureau of Consumer Financial Protection issued its interim final rule on Sept. 12, 2018, it indicated that employers indeed would have to provide a notice of the right to obtain a security freeze as part of the Summary of Rights. A copy of the revised form is available here. Because plaintiffs’ counsel are constantly in search of any opportunity possible to expand their ability to file class actions alleging FCRA violations, cautious employers will want to use the new form at least until the Bureau decides to shift its position or the courts force them to shift.