On Tuesday, the Sixth Circuit affirmed an employer’s summary judgment on a defamation and tortious interference claim brought by a former employee who claimed that he had been defamed and prevented from obtaining new employment based on a negative job reference that the defendant employer provided to a consumer reporting agency. McKenna v. Dillon Transp. LLC, No. 23-5568 (6th Cir. 4/2/24). The Court agreed that the plaintiff’s state law claims were pre-empted by the Fair Credit Reporting Act. The Court rejected the plaintiff’s argument that a similar federal statute governing employment/safety references of commercial drivers provided liability for his claims because it did not specifically pre-empt the FCRA and was compatible with it.
According to the Court’s opinion, the defendant employer
provided information to a consumer reporting agency about the plaintiff after
he was fired following an accident in which his tractor trailer overturned. The agency provides information about drivers
to employers who inquire about hiring that driver, but there was no evidence
that anyone had ever inquired about the plaintiff. The plaintiff then sued the employer for
defamation and tortious interference, blaming its report for his inability to
find another job. The trial court
granted summary judgment to the employer on the grounds that state law claims
were preempted by the FCRA.
The Court observed that it had previously held that §
1681t(b)(1)(F)of the FCRA “preempts state common law claims involving a
furnisher’s reporting of information to consumer reporting agencies.” The plaintiff argued that a different federal
statute applied. The DOT requires
employers to investigate a driver’s safety record before hiring and the
governing statute likewise pre-empts state laws that impose liability upon
employers for providing such information.
However, unlike the FCRA, the transportation statute does not exempt
employers who knowingly provide false information about a driver’s safety
record.
The Court rejected the plaintiff’s argument on a number of
grounds. First, there was no evidence
that any employer had requested information about his safety record, which
would be necessary to implicate this statute.
Second, it was questionable whether the defendant employer’s statements
were “knowingly” false, rather than merely negligently false. Finally, the Court did not find the
transportation statute to necessarily repeal or be inconsistent with the FCRA. “The two preemption statutes here complement
each other, so they can coexist.”
15 U.S.C. § 1681t stops states from
regulating false reports to consumer reporting agencies, including agencies
that provide background checks. 49 U.S.C. § 508 blocks specific causes of
action against those who answer a motor carrier’s request for employment
information. One regulates the consumer reporting industry. Another regulates
the hiring of commercial drivers. The statutes have different textual purposes
and scopes, and neither swallows the other. Communications between motor
carriers about driver applicants would only fall under § 508. And only 15
U.S.C. § 1681t would cover cases without a request for records or an individual
under consideration for employment. That the FCRA is a more general law that
covers more conduct than 49 U.S.C. § 508 doesn’t change this. Greater
specificity only matters if two complementary acts cannot be implemented at the
same time. . . . And the statutes do not
conflict—one simply provides more protection for companies in Dillon’s
position. So we give both statutes full effect rather than resorting to the
specific-general canon. Dillon can invoke one preemption clause even if it
cannot invoke the other.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
