ARTICLE
Amendment to the FCRA Gives More Rights in Workplace Investigations
On December 4, 2003, President Bush signed into law the Fair and Accurate Credit Transactions Act (FACTA), giving employers greater freedom in conducting workplace misconduct investigations, including sexual harassment, discrimination, workplace violence, fraud, drug use, and other safety related workplace issues. Prior to the amendment, if a company wished to perform an investigation using a third-party, it would first need to obtain the employee's written consent. In addition, the employer was required to provide the employee a complete copy of the investigative report prior to taking any adverse action. This report would include the names of all persons interviewed, including the alleged harassee and all witnesses involved.
These restrictions were previously imposed by the Fair Credit Reporting Act (FCRA) which was determined by the Federal Trade Commission (FTC) to govern workplace investigations. After March 31, 2004, under the new Section 611 "Exclusion of Certain Communications for Employee Investigations" of the FACTA, employee misconduct investigations by third-party are no longer covered under the FCRA. This means that now employers will no longer need to obtain employees' consent to conduct the investigation or notify the employee of the investigation prior to taking any adverse action. Although the employer must still provide a summary of the investigative report after any adverse action has been taken, witnesses' names may be excluded.
"I believe that it is in the best interest of both responsible employers and upstanding employees that professional investigations not be compromised by the FTC's misguided interpretation of the FCRA. The enactment of this legislation will play an important role in ensuring the safety and integrity of the workplace," says Congressman Pete Sessions, sponsor of the FACTA.
It should be noted that many states have their own fair credit reporting statues, and the federal FCRA does not preempt state laws regarding the changes to workplace investigations. Employers should refer to their particular state laws as they may still impose significant restrictions on conducting workplace investigations.
If you have further questions about the FACTA or FCRA, contact an InfoMart Customer Service Representative at 770-984-2727 option 2 or customerservice@infomart-usa.com.
(Source: http://www.businesspowerlaw.com & http://www.businesscontrols.com)
