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socrateaser
socrateaser, Lawyer
Category: California Employment Law
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Facts I have a clear violation of the ICRAA or CCC 1786.18

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Facts: I have a clear violation of the ICRAA or CCC 1786.18 on my hands (in this case the Consumer Reporting Agency reported on criminal activity that is over 7 years old, etc, and stated in a report that the consumer was "not clear for hire," subsequently I have in writing from the employer that they did not make the hire as a result of the report; so liability is firm). Further, the relevant title enumerates damages as the sum of: 1). actual damages, or 10k, 2). costs/attorneys fees, and 3). Punitive damages.

Questions:

1. Does the term actual damages, as used in this statute, exclude other types of damages (i.e., pain and suffering, etc) ?
2. Can a person also sue for pain and suffering under this statute?
3. Do any other causes of action (i.e., laws, torts, etc) come to your mind with these facts (I am thinking NIED maybe)?
4. Can the employer be sued for relying on an illegal report? Or is there any employer liability here?

Thanks
Hello again.

I'm sorry no one picked up this question until now -- but, this is the first I've seen of it. Anyway, you asked:

1. Does the term actual damages, as used in this statute, exclude other types of damages (i.e., pain and suffering, etc) ?

A: Emotional damages, if proved, would be included in the definition of "actual damages." There is a difference between "actual damages" and "out-of-pocket damages." The former is an actual loss for which recovery is permitted, even though there is no direct expense, while the latter is a loss that required the plaintiff to expend resources to compensate for the loss.

That said, The term "actual damages" has been interpreted to include recovery for emotional distress and humiliation. Moreover, no case has held that a denial of credit is a prerequisite to recovery under the Fair Credit Reporting Act, 15 U.S.C.S. § 1681. See Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1995 U.S. App. LEXIS 917, 95 Cal. Daily Op. Service 477 (9th Cir. Cal. 1995).

2. Can a person also sue for pain and suffering under this statute?

A: The term, "pain and suffering" refers to injuries caused by a physical impact. It has no application to a Fair Credit Reporting Act claim (at least none that I can contemplate). Emotional damages, once again, if proved to be caused by the defendant could be compensated.

3. Do any other causes of action (i.e., laws, torts, etc) come to your mind with these facts (I am thinking NIED maybe)?

A: NIED is one of the most disfavored civil claims, because of the difficulty of proving proximate causation (can a person be responsible for another's emotional distress based solely upon their lack of due care). Regardless, the Fair Credit Reporting Act preempts tort claims generally, leaving the only claim available based upon the Act, itself.

4. Can the employer be sued for relying on an illegal report? Or is there any employer liability here?

A: An employer can be sued for unlawful discrimination. So, it's conceivable that the employer could have made an employment decision based upon the illegal report part of a race, color, nationality, etc., based decision. However, that would be a stretch. So, I think this may be a dead end legal theory.

Hope this helps.

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