Publications

Workplace Misconduct Investigations Now Excluded from the Fair Credit Reporting Act

January 5, 2004

President Bush recently signed into law the Fair and Accurate Credit Transactions Act (FACTA), which reauthorizes the Fair Credit and Reporting Act (FCRA) and eliminates third-party misconduct investigations from the FCRA's coverage. The FCRA has, since its inception, applied to the collection and use of personal information for employment purposes. Recent amendments broadly expanded the Act's coverage and required employers using outside investigators to investigate workplace misconduct to comply with cumbersome notification and disclosure requirements.

Employers were, under these amendments, required to notify the accused of the forthcoming investigation and obtain his/her written consent to be investigated. Employers were also required to provide the accused with a complete copy of the investigative report, including witness statements from all adverse witnesses. These requirements were, for the past several years, harshly criticized by employers and investigators alike because they allowed the accused to interfere with the investigative process. They also, by requiring full disclosure of the investigative report, provided the accused ample opportunity to harass or threaten adverse witnesses.

FACTA eliminates these procedural obstacles and corresponding problems by excluding from the Statute's coverage any workplace investigation regarding alleged violations of federal, state or local laws or a company's policies and procedures-in other words, pretty much any employer investigation unrelated to an employee's creditworthiness.

This means employers will now be free to use outside experts to investigate employees without the employee's advance knowledge or consent; however, employers who take an adverse personnel action against an employee (i.e. termination, suspension, etc.) based in part on any investigative report or information will be required to provide the employee with a summary of the nature and substance of the report. The sources of the information, however, need not be disclosed so employee witnesses can now participate in investigations without fear that their statements will automatically be provided to the accused.

Firm Highlights

Experience

Thompson Coe Saves Client $100Ks in Damages After 3-Day Trial

Publication

The Importance of Strategic Transitions

Transitions versus change, what’s the destination and why is this important for a business?  Kevin talks with Gwen Gierke from Gierke Jungbauer on how they help to manage transitions. Transition happens in three stages: the ending, the neutral zone, and...

Publication

The 2020 HR Recap

We’ve made it to the recap episode! The good, the bad, the ugly, and everything in between. Join Kevin and Elaine (Lainey) Luthens as they discuss it all including FFCRA legislation, OSHA, what they...

Publication

U.S. Supreme Court Settles Issue of Title VII Protections for LGBTQ+ Employees

Headshot of Stephanie Rojo
Experience

COVID-19 Response Team - Resources and Updates

Publication

Supreme Court Reaffirms and Clarifies Ministerial Exception to Employment Discrimination Laws Under First Amendment’s Religion Clause

Publication

The Tale of OCS and the Coronavirus

How has Opportunity Community Services survived during this pandemic and Phase 1? Rose Kukwa of Opportunity Community Services and Dennis Van Norman with Van Norman & Associates share their experience.  Rose and her team...

Publication

Putting Your Employees to the Personality Test

Publication

ICHRAs

Individual Coverage HRA. What is it? What are the benefits and drawbacks? What companies are a good fit for ICHRAs versus group health plans? Kevin talks with Matt Hollister, President and CEO of Business...

Publication

The COVID-19 Vaccine Part 1