Just the FACT Act, please: using outside experts to investigate workplace misconduct just got easier

HR Magazine, April, 2004 by Gregory M. Davis

After deciding to take adverse action, the employer must provide the applicant or employee with the following five things:

* Notice of the adverse action taken.

* The name, address and toll-free telephone number of the CRA that furnished the consumer report.

* A statement that the CRA did not make the decision to take the adverse action and is unable to provide the consumer the specific reasons why the adverse action was taken.

* Notice of the consumer's right to obtain a free copy of the consumer report from the CRA within 60 days.

* Notice of the consumer's right to dispute the accuracy or completeness of any information in the consumer report furnished by the CRA.

Investigative consumer report rules. The FCRA imposes even more stringent requirements on employers seeking investigative consumer reports. Not later than three days after first requesting a report from the CRA, an employer must disclose in writing to the applicant or employee its intention to obtain an investigative consumer report. That disclosure must include both the summary of consumer rights described above and a statement informing the applicant or employee of the right to request additional disclosures regarding the nature and scope of the investigation.

If the applicant or employee requests additional information within a reasonable time, the employer must make a complete disclosure of the nature and scope of the investigation. The disclosure must be in writing and must be given to the applicant or employee no later than five days after the date on which the employer received the request or first requested the report, whichever is later.

Compliance with the FCRA always has been tricky. The recent amendments to the act--although ameliorative--add yet another element to the human resources professional's compliance strategy. Understanding the act as amended, however, can be an important tool to ensuring a productive and safe workplace.

GREGORY M. DAVIS IS A LABOR AND EMPLOYMENT ATTORNEY IN THE CHICAGO OFFICE OF THE LAW FIRM SEYFARTH SHAW LLP. DAVIS ADVISES EMPLOYERS ON ALL FACETS OF EMPLOYMENT LAW COMPLIANCE, CO-CHAIRS THE FIRM'S NATIONWIDE TASK FORCE ON THE FCRA AND IS A MEMBER OF SHRM'S WORKPLACE DIVERSITY ADVISORY PANEL. SEYFARTH SHAW, AND DAVIS IN PARTICULAR, WORKED CLOSELY WITH SHRM OVER THREE YEARS (AND TWO PRESIDENTIAL ADMINISTRATIONS) TO RESPOND TO THE VAIL LETTER AND PROMOTE THE WORKPLACE MISCONDUCT INVESTIGATION AMENDMENT TO THE FCRA.