| Workplace Investigations & Background Checks |
Workplace Investigations
FACTA sets a new standard for what the law calls "employee misconduct investigations."
What is an "employee misconduct investigation"?
This is an investigation conducted by a third-party your employer may hire if the employer suspects you of:
Misconduct relating to your employment.
A violation of federal, state, or local laws or regulations.
A violation of any preexisting written policies of the employer.
Noncompliance with the rules of a self-regulatory organization, that, for example, oversees the securities and commodity futures industry.
Why was this change made to the FCRA?
This section was adopted to make it clear that employers do not have to get permission to conduct a misconduct investigation. Prior to this, FTC staff issued an opinion letter, the so-called Vail Letter (www.ftc.gov/os/statutes/fcra/vail.htm), that said the disclosure and consent requirement of FCRA applies even when an employee is suspected of misconduct and the employer hires an outside investigator. Employers objected to this interpretation of the law because they felt that obtaining consent would tip off the employee to an investigation. (Note: California law already includes an exception for workplace misconduct investigations. www.privacyrights.org/fs/fs16a-califbck.htm.)
If my employer suspects me of misconduct, what does this mean for me?
It means your employer does not have to give you notice and get your permission to conduct a misconduct investigation. Like other inquiries covered by the FCRA, this only applies if the employer hires an outside party to conduct the investigation.
It also means you will not receive a notice of your rights as others who are subject to a standard employment background check normally would. If, at the end of the investigation, the employer decides to take some action against you, you receive the "adverse action" notice only after the action has been taken.
You will receive only a "summary" of the investigation report, but not the more detailed report that may include sources.
Who will see the investigation report?
The report may be communicated to:
The employer or its agent.
Any federal or state officer, agency or department, or any officer, agency or department of a unit of general local government.
Any self-regulatory organization with regulatory authority over the activities of the employer or the employee.
Others, as otherwise required by law; or
A government agency, in accordance with an existing FCRA section that allows a consumer reporting agency to disclose personal identifying information to a government agency.
Can I dispute the findings?
Not under the FCRA dispute procedure. That is because this new section on workplace misconduct investigations was established by removing this type of investigation from the definition of "consumer report." Thus, the usual protections that apply to a consumer report conducted for employment purposes do not apply to workplace misconduct investigations. |