Connor v. First Student, Inc.

• Court: California Supreme Court
• Writing for the Court: CHIN, J.
• Citation: Connor v. First Student, Inc., 5 Cal.5th 1026, 236 Cal.Rptr.3d 826, 423 P.3d 953 (Cal. 2018)
• Decision Date: 20 August 2018
• Docket Number: S229428
• Parties: Eileen CONNOR, Plaintiff and Appellant, v. FIRST STUDENT, INC., et al., Defendants and Respondents.

5 Cal.5th 1026

423 P.3d 953

236 Cal.Rptr.3d 826

Eileen CONNOR, Plaintiff and Appellant,

v.FIRST STUDENT, INC., et al., Defendants and Respondents.

S229428

Supreme Court of California.

Filed August 20, 2018

Sundeen Salinas & Pyle, Hunter Pyle Law, Hunter Pyle, Tanya Tambling, Rachel Evans, Chad Saunders, Oakland; Lewis, Feinberg, Renaker, Lee & Jackson, Lewis, Feinberg, Lee & Jackson, Feinberg, Jackson, Worthman & Wasow, Todd F. Jackson and Catha Worthman, Oakland, for Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Nicklas A. Akers, Assistant Attorney General, Michele Van Gelderen and Alicia K. Hancock, Deputy Attorneys General, for Attorney General as Amicus Curiae on behalf of Plaintiff and Appellant.

Law Offices of Craig Davis and Craig Davis, San Francisco, for A New Way of Life Reentry Project, Bay Area Legal Aid, Bet Tzedek Legal Services, Center for Employment Opportunities, Collateral Consequences Resource Center, Community Service Society of New York, Drug Policy Alliance, East Bay Community Law Center, Ella Baker Center for Human Rights, Equal Rights Advocates, Lawyers' Committee for Civil Rights of the San Francisco Bay Area, Legal Action Center, Legal Aid Foundation of Los Angeles, Legal Aid of Marin, Legal Services for Prisoners with Children, Legal Services of Northern California, National Consumer Law Center, Neighborhood Legal Services of Los Angeles County, North Carolina Justice Center, Public Counsel, Public Interest Law Project, Public Law Center, Root & Rebound, Rubicon Programs and Western Center on Law and Poverty as Amici Curiae on behalf of Plaintiff and Appellant.

Seth E. Mermin, Thomas Bennigson and Jonathan S.M. Francis for California Reinvestment Coalition, Consumer Action, Consumers for Auto Reliability and Safety, Housing and Economic Rights Advocates, National Association of Consumer Advocates, National Employment Law Project, National Housing Law Project and Public Good Law Center as Amici Curiae on behalf of Plaintiff and Appellant.

Littler Mendelson, Benjamin A. Emmert and Ronald A. Peters for Defendants and Respondents.

Covington & Burling, Andrew M. Smith and Simon J. Frankel for the Consumer Data Industry Association as Amicus Curiae on behalf of Defendants and Respondents.

CHIN, J.

We granted review to resolve a conflict in the Courts of Appeal over whether the Investigative Consumer Reporting Agencies Act (ICRAA) ( Civ. Code, § 1786 et seq. )¹ is unconstitutionally vague, in violation of due process, as applied to employer background checks because it overlaps, in part, with the Consumer Credit Reporting Agencies Act (CCRAA) (§ 1785.1 et seq.). We agree with the Court of Appeal that some overlap between the two statutes does not render ICRAA unconstitutionally vague when the statutes are otherwise unambiguous. We therefore affirm the Court of Appeal judgment.

FACTS AND PROCEDURAL HISTORY

Current and former bus drivers filed this class action against their employers, defendants First Student, Inc., and First Transit, Inc. (collectively First), and HireRight Solutions, Inc., and HireRight, Inc. (collectively HireRight), the investigative consumer reporting agencies that conducted background checks on them. Connor is the selected bellwether plaintiff for the operative consolidated fourth amended complaint.²

Connor worked as a school bus driver for Laidlaw Education Services, which First acquired in October 2007. First requested that consumer reporting agency USIS (HireRight's corporate predecessor) conduct background checks on its employees on three separate occasions in 2007, 2009, and 2010. The background reports elicited information about the employees, including criminal records, sex offender registries, address history, driving records, and employment history. First "admits that those background checks [would be] used to confirm that Connor and the other employees 'are properly qualified to safely perform their job duties.' "

Before conducting the background checks, First sent Connor a "Safety Packet" booklet. The booklet included a notice, entitled "Investigative Consumer Report Disclosure and Release," that authorized USIS to prepare a consumer report or investigative consumer report. The notice provided that Connor could view the file maintained on her, receive a summary of that file by telephone, or obtain a copy of it. The notice also explained that Connor could request an "investigative consumer report" that included " 'names and dates of previous employers, reason for termination of employment, work experience, accidents, academic history, professional credentials, drugs/alcohol use, [and] information relating to [the employee's] character ... which may reflect upon [her] potential for employment.' " The notice included a check box that generally described Connor's rights under ICRAA and informed her that she could check the box if she wanted to receive a copy of the report. (See § 1786.16, subd. (b)(1).) It also informed her that checking the box would release First from all claims and damages arising out of or relating to its background investigation. Connor's lawsuit alleges that the notice did not satisfy the ICRAA's specific requirements and that First failed to obtain her written authorization to conduct the background check, as ICRAA requires. (§ 1786.16, subd. (a)(2)(C) [consumer subject to ICRAA must authorize "in writing the procurement of the report"].) Written authorization ensures that the subjects of the investigation are aware of their right to receive copies of the information gathered about them so they can correct inaccuracies, dispute the information, and request reinvestigation. (§ 1786.2 et seq.)

Connor sued First for violating ICRAA because its 2010 notice did not satisfy ICRAA notice requirements and First did not obtain her written authorization to conduct the background investigation.³ (See § 1786.16, subd. (a)(2)(C).) "First admit[ted] that the background checks it requested HireRight to prepare included reports containing information regarding the subject's criminal records, sex offender status, address history, driving records, and employment history." It moved for summary judgment, however, claiming that ICRAA is unconstitutionally vague as applied to Connor's claim because it overlaps with CCRAA and that, in any event, First's notice satisfied CCRAA. The trial court granted First's motion.

The Court of Appeal reversed the trial court's judgment, finding that although ICRAA and CCRAA might overlap to some degree, there is no "positive repugnancy" between them that would render ICRAA unconstitutional. The court held that agencies that provide reports (including reports prepared for employers addressing employee creditworthiness and character) "can comply with each act without violating the other." We granted First's petition for review.

DISCUSSION

I. Statutory Background

In 1970, the Legislature enacted the Consumer Credit Reporting Act. (Civ. Code, former § 1785.1 et seq., added by Stats. 1970, ch. 1348, § 1, p. 2512 and repeated by Stats. 1975, ch. 1271, § 2, p. 3377.) The act governed "credit rating reports" that included consumer credit record and standing reports. That same year, Congress passed the Fair Credit Reporting Act (FCRA). ( 15 U.S.C. § 1681 et seq. ) FCRA defined a "consumer report" to include an individual's "credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living." ( 15 U.S.C. § 1681a(d)(1).) FCRA distinguished between consumer reports that contained information obtained by personal interviews, and consumer reports that were gathered by other means. ( Id. , § 1681a(e).)

In 1975, our Legislature repealed the 1970 Consumer Credit Reporting Act and enacted ICRAA and CCRAA to govern consumer background reports, including checks conducted for employment purposes. ( §§ 1786 et seq., 1785.1 et seq. ) The statutes were modeled after FCRA and were intended to serve complementary, but not identical, goals. Both ICRAA and CCRAA had similar purposes. They were enacted to ensure that consumer reporting agencies "exercise their grave responsibilities with fairness, impartiality, and a respect for the consumer's right to privacy." ( §§ 1785.1, subd. (c), 1786, subd. (b).) As originally enacted, ICRAA applied to consumer reports that included character information obtained only through personal interviews. (Stats. 1975, ch. 1272, § 1, p. 3378.) The statute was, in part, designed to protect consumers from identity theft by giving them "copies of any investigative consumer reports made on them." ( § 1786, subd. (e).)

ICRAA states that "[a]n investigative consumer reporting agency" may provide an "investigative consumer report" to a person other than the subject of the report under limited circumstances. (§ 1786.12.) Such a report can be given to a person who "[i]ntends to use the information for employment purposes." (Id. , subd. (d)(1).) As the Court of Appeal observed, the statute defines an "investigative consumer report" as one "in which information on a consumer's character, general reputation, personal characteristics, or mode of living is obtained through any means." (§ 1786.2, subd. (c).)

ICRAA requires the person procuring the report (or causing it to be made) for employment purposes "other than suspicion of wrongdoing or misconduct by the subject of the investigation" (§ 1786.16, subd. (a)(2) ), to "certify to the investigating consumer reporting agency" (id. , subd. (a)(4) ) that it provided the consumer a "clear and conspicuous disclosure in writing" (id. , subd. (a)(2)(B) ) that includes the act's disclosure requirements, and that the consumer gave a written authorization for the report's procurement. In the event the recipient of an investigative report takes an adverse employment action against the consumer based on information in the report, the person taking the action must provide the consumer with the name and address of the investigative consumer...