Connor v. First Student, Inc.
236 Cal. Rptr. 3d 826
Cal.2018Background
- Plaintiff Eileen Connor, a school bus driver, sued her employer First Student, Inc. and background-check vendor HireRight under California’s Investigative Consumer Reporting Agencies Act (ICRAA), alleging First failed to obtain the written authorization and provide statutorily required disclosures before procuring an employment background investigation.
- First’s 2010 “Safety Packet” disclosed that an investigative consumer report might be requested and included a check-box referencing ICRAA rights, but Connor alleges it did not meet ICRAA’s specific notice and written authorization requirements.
- The background reports at issue included criminal records, sex offender registry checks, address and driving history, and employment history — information bearing on character and employment fitness.
- First moved for summary judgment arguing ICRAA is unconstitutionally vague as applied to employment background checks because its scope overlaps with the Consumer Credit Reporting Agencies Act (CCRAA), and alternatively that its notice complied with CCRAA.
- The Court of Appeal reversed the trial court, holding the statutes can overlap and regulated parties can comply with both; the California Supreme Court granted review to resolve the conflict among appellate courts.
- The Supreme Court affirmed the Court of Appeal: the 1998 amendment broadened ICRAA to cover character information obtained by any means, overlap with CCRAA does not make ICRAA unconstitutionally vague, and First must comply with ICRAA’s written-authority and disclosure requirements when a report falls within ICRAA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ICRAA is unconstitutionally vague as applied to employment background checks that overlap with CCRAA | ICRAA is clear; applies to reports bearing on character obtained by any means; overlap does not render it vague | Overlap with CCRAA creates uncertainty which violates due process (per Ortiz) | Overlap does not make ICRAA unconstitutionally vague; both statutes can be applied together |
| Whether Connor’s background report is governed by ICRAA | Report contained information about character and reputation obtained by any means, so ICRAA applies | Report also falls under CCRAA, so ICRAA shouldn’t govern exclusively | Report is an investigative consumer report under ICRAA; CCRAA’s applicability does not excuse noncompliance with ICRAA |
| Whether regulated parties can comply with both statutes when a report touches creditworthiness and character | Parties can and must follow both statutes when applicable | Compliance is impracticable and unclear which statute governs | Parties are expected to comply with both where applicable; no practical or constitutional obstacle |
| Whether Ortiz and related appellate decisions correctly held ICRAA vague in overlapping contexts | Ortiz was wrongly decided given the 1998 amendment and statutory text | Ortiz supports invalidation of ICRAA as vague where categories blur | Disapproved Ortiz and related cases; affirmed overlap is permissible and statutes are sufficiently clear |
Key Cases Cited
- Connally v. General Constr. Co., 269 U.S. 385 (statute void for vagueness principle)
- Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489 (less strict vagueness test for economic regulation)
- United States v. Batchelder, 442 U.S. 114 (same conduct violating multiple statutes does not undermine notice afforded by each)
- Ortiz v. Lyon Mgmt. Grp., Inc., 157 Cal.App.4th 604 (appellate decision holding ICRAA vague in overlapping contexts — disapproved)
- Trujillo v. First Am. Registry, Inc., 157 Cal.App.4th 628 (companion case to Ortiz — disapproved)
- J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124 (overlapping statutes may stand if each reaches distinct cases)
- Powell v. U.S. Cartridge Co., 339 U.S. 497 (expectation that regulated parties follow multiple statutory requirements)