FAQ

Q. Do I have to follow the standard FCRA employee notice and authorization requirements if I hire third-party organizations, including law firms, to investigate allegations of workplace misconduct? Also, are there any differences between federal and state law in this type of investigation?

A. Over the years, there have been many conflicting federal and state statutes governing third-party investigations of employees suspected of misconduct. Several different FAQ and Legislative Updates on the Cisive Web site have addressed such issues at varying times. However, with the Fair and Accurate Credit Transactions Act of 2003 (FACT Act), the answer to this questions has been cleared up — to an extent.

As you know, the FACT Act contains a number of provisions that clarify or address rights under the federal Fair Credit Reporting Act (FCRA), 15 U.S.C. 1681 et seq., that are self-effectuating. One such area of change involved clarifying the duties of employers when they use third parties to investigate possible employee misconduct, e.g., sexual harassment, embezzlement, workplace violence, drug sales and other illegal activities, which were undermined by unintended consequences of the 1996 amendments to the FCRA and a 1999 FTC staff opinion letter now known as the “Vail Opinion Letter.”

As a point of historical review, the Vail Opinion Letter stated that the notification and authorization requirements of the FCRA applied whenever employers hired third-party organizations, including law firms, to investigate allegations of workplace misconduct. This created quite a furor in the employer community. At the time, the FTC followed up on this “hot” issue and opined that, where allowed by law, employers could work around the awkward prospect of having to ask a suspected wrongdoer for permission to allow a third party to provide an investigative (or other) consumer report to the employer by routinely obtaining – at the start of employment or while employed – a general or “blanket” authorization from the consumer to obtain consumer reports or investigative consumer reports at any time during the consumer’s tenure of employment. Thus the employer would be allowed to conduct its investigation confidentially without alerting the employee until the employer is prepared to confront the employee with its findings.

The FACT Act reauthorized the FCRA with a provision to remove third-party investigations of alleged employee misconduct from the notice and authorization requirements of the FCRA. However, legislation provides only a limited fix to the problem, since employers will still be required to provide some notification but only after an investigation is concluded.

Notwithstanding the provisions of the FACT Act, Cisive recommends to its clients that the authorizations/disclosures obtained from employees and prospective employees continue to include a blanket clause allowing employers to obtain consumer reports and investigative consumer reports at any time during the consumer’s employment.

Despite the amendments promulgated by the FACT Act, it is important for employers to realize that the State of New York has legislation in effect that continues to make this an onerous issue for New York employers. Pursuant to G.B.L Article 25, Section 380(c), New York does allow for blanket authorizations for subsequent CONSUMER reports during the consumer’s tenure of employment. However, there is no such provision for “investigative” consumer reports, nor is there a provision for waiving the notice/authorization requirement for suspected misconduct.

G.B.L Section 380(d) defines an “investigative” consumer report as follows:

  • (d) The term “investigative consumer report” means a consumer report or portion thereof in which information on a consumer’s character, general reputation, personal characteristics, or mode of living is obtained through personal interviews with neighbors, friends, or associates of the consumer reported on or with others with whom he is acquainted or who may have knowledge concerning any such items of information. However, such information shall not include specific factual information on a consumer’s credit record obtained directly from a creditor of the consumer or from a consumer reporting agency when such information was obtained directly from a creditor of the consumer or from the consumer.

The New York law affecting New York residents with respect to notice/authorization to conduct an investigative consumer report will not be pre-empted by the federal FACT Act, since it is more protective of consumer rights and was enacted prior to the FACT Act and any amendments recently made to the FCRA.

Generally speaking, a consumer report is more factual in nature. One might ask whether speaking to a school representative or employer to verify items of information stated by the consumer on an application constitutes an interview and thus, an investigative consumer report. At least under federal law, the FTC Has opined that simply verifying “factual” information does not rise to the level of an investigative consumer report (see http://www.ftc.gov/os/statutes/fcra/beaudett.htm).

An investigative consumer report with more intense interviewing questions relating to the character-type factors is, by definition, more subjective in nature, e.g., contains evaluative or performance-rating information.

Bottom Line: As you can see, the water is still quite “muddy” on this issue, at least with respect to New York residents. If you are considering investigating an employee for suspected misconduct, and that individual is a New York resident, and you feel the investigation may rise to the level of an investigative consumer report, we suggest you discuss the matter with your legal counsel to ascertain the requirements of the law with respect to proper notice and authorization.

Please realize that no publication can anticipate all individual situations and questions that may arise. If you have questions concerning your legal rights and obligations under state or federal consumer reporting laws, or any local laws or regulations governing the acquisition and use of applicant and employee information, please consult with your experienced employment law counsel.

This information is intended for informational purposes only and is not to be considered legal advice. Please realize that no publication can anticipate all individual situations and questions that may arise. If you have questions concerning your legal rights and obligations under state or federal consumer reporting laws, or any local laws or regulations governing the acquisition and use of applicant and employee information, please consult with your experienced employment law counsel.

Q. Do the California employment screening statutes apply only to reports covering current California residents?

A. The federal Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., (“FCRA”) governs the acquisition and use of most background information on applicants and employees when used for employment purposes. “Employment purposes” are defined in the FCRA to include hiring, termination, reassignment, or promotion of an applicant or employee. In addition to the requirements of the FCRA, California has two statutes that impact on the employment screening process: the California Consumer Credit Reporting Agencies Act (“CCRAA”), Cal. Civ. Code § 1875.1 et seq., and the California Investigative Consumer Credit Reporting Agencies Act (“ICRAA”), Cal. Civ. Code § 1786 et seq.

The ICRAA does not explicitly identify the scope of its coverage. We have found nothing in that statute, however, which suggests that the notices and disclosures it requires were intended to apply to consumers other than those with a California mailing address.

The CCRAA, which comprises the Title of the California Civil Code immediately preceding the ICRAA, expressly states that the notices and disclosures to consumers provided for in that title need be made “only to those consumers who have a mailing address in California.” CCRAA § 1785.6. A similar interpretation of the scope of the ICRAA would be consistent with the Legislature’s stated intent in enacting the ICRAA; that is, “to regulate investigative consumer reporting agencies . . . in a manner which will best protect the interests of the people of the State of California.” ICRAA § 1786(g).

We note that one could also make the opposite argument; that is, the absence of language in the ICRAA limiting the scope of its coverage to consumers with a California mailing address, arguably could indicate a legislative intent that the ICRAA statute would have broader applicability than that expressly stated in the CCRAA.

On balance, we believe that the most likely interpretation is the former, and that the notice and disclosure requirements in the ICRAA are intended to apply only to consumers with a California mailing address. This conclusion is not only consistent with the Legislature’s stated intent to protect California citizens, but it is also reasonable and consistent with the general operation of other state consumer protection statutes.

With that said, however, it is important to understand that there is very little case law available at this time that specifically addresses this complex issue. For employers wishing to comply with the most restrictive state laws on a uniform nationwide basis, it is safest, at a minimum, to comply with the laws of the states where:

  • The individual investigated resides;
  • The consumer reporting agency (“CRA”) is incorporated or has its primary place of business;
  • The employer requesting the report is incorporated;
  • The employer has its principal place of business; or
  • Otherwise where the employer receives and actually uses the report for employment purposes.

This information is intended for informational purposes only and is not to be considered legal advice. Please realize that no publication can anticipate all individual situations and questions that may arise. If you have questions concerning your legal rights and obligations under state or federal consumer reporting laws, or any local laws or regulations governing the acquisition and use of applicant and employee information, please consult with your experienced employment law counsel.

Q. How can I obtain a copy of the federal Fair Credit Reporting Act (FCRA)?

A. You can obtain a copy of the FCRA from the Federal Trade Commission (FTC), the U.S. agency responsible for regulating the FCRA. The FCRA can be downloaded in PDF format from the FTC’s Web site.

Q. Missing personal identifiers in criminal history record searches

Cisive, and the employment screening industry as a whole, has been experiencing an increase in delays in time service in certain jurisdictions as a direct result of these jurisdictions eliminating key personal identifiers in court records, especially social security numbers (SSN). With the ever increasing frequency of identity theft, many courts are now removing personal identifiers from the public record provided for public inspections. In those situations where we previously received the court file or a printout to substantiate positive identification, we are now required to submit requests directly to the clerk to confirm identification or disposition. This generally results in a delay, especially for common name searches.

There has been persistent interest, both at the federal and the state level, in restricting the display or even the use of SSNs. Much of this interest is driven by worries about the misuse of the SSN for identification fraud. For over five years, Congress has strived unsuccessfully to enact a balanced and appropriate SSN privacy bill, e.g., H.R. 2971, Clay Shaw’s (R-FL) longstanding bill, and Senator Dianne Feinstein’s (D-CA) companion bill, S. 2801.

In the absence of federal action, several states, including California and Florida, have already enacted legislation to impose state statutory restrictions. In 2004, 17 states enacted SSN privacy legislation (see previous issues of the Cisivennection (TM) newsletter for specific legislative information). Seven of these new laws took the form of restrictions on the ability of employers, state government agencies and, in some cases, other types of entities, such as insurances companies, from displaying the full SSN on an individual’s identification card or other documentation. Washington, Virginia, Arizona, Oklahoma, Illinois, Louisiana and Colorado all enacted this kind of legislation.

In addition, West Virginia and Florida enacted legislation this year that exempts SSNs from disclosure under the state’s Freedom of Information Act or public records law. Maine enacted a “denial of service” law which prohibits a business from denying goods or services to an individual who refuses to provide a business with their SSN. Wisconsin adopted a new law that prohibits any institution of higher education in the state from using a social security number as a student ID. California, which already has a comprehensive SSN privacy law, “piled on” by enacting two bills that toughened the restrictions on the use and display of SSNs and, on June 21, 2004, California’s Chief Justice of the Supreme Court formed a new committee to consider privacy concerns when drafting a policy on public access to computerized court records. Finally, Illinois enacted a very ambitious law creating a “social security number protection task force” which is charged with examining a wide array of potential strategies and remedies for protecting SSN privacy.

Currently, Cisive is experiencing time service delays in jurisdictions directly related to redacted personal identifiers that include, but are not necessarily limited to, the following:

1. Florida – The State’s Judicial Council has recommended that courts NOT provide unrestricted access to records until policies balancing privacy and access are developed. Several counties have since removed identifiers from their public access terminals and Internet access.

2. Virginia – Virginia has established a project to put the case management abstracts of selected courts on the Internet AFTER removing personal identifying material such as social security numbers, telephone numbers, and street addresses. HB 2426 prohibits information already available in the public courts records from going online. The prohibited information includes SSN, birth date, signatures and exact address(es). The law went into effect on Jan. 1, 2004 however, several amendments have been made thus far providing exclusions depending on whether there is a subscription and auditing function to the system. This issue is still under debate at the state level.

3. Kern County, CA – DOB’s removed from public view.

4. Los Angeles, CA – Court clerk MUST perform the actual search. Public Access methods, primarily microfiche, have no identifiers.

5. Monroe County, IN – SSNs have been masked or removed from public view on the public access terminals.

6. Jefferson County, KY – District Courts deleted all SSNs from all records in the computerized index system.

7. West Virginia – All Counties – ALL magistrate courts are removing ALL personal identifiers, except the name.

8. Hamilton County, OH – Issue being reviewed at this time. Domestic court judges in Butler County have ordered documents in their cases be kept off the Internet. The Judges were concerned that SSNs and other information could be used for identity theft.

In addition, it should also be noted that Federal criminal history record searches, while not the result of recent legislative trends, typically do not include personal identifying information other than just the name. As a result, all name matches require us to request the file to be retrieved by the court clerk, which results in time delays.

As you can see, this is a very hot issue right now, with no signs of abating. We ask your understanding as time service delays may occur due to conditions beyond our control. If you have any questions, please do not hesitate to contact your Customer Service Representative.

Q. Supplemental National Criminal Information Database Search

A. Cisive conducts a search of a proprietary database that consists of 453 million current and historical arrest, felony, misdemeanor, incarceration, conviction, fugitive, escapee, absconder, and probation records on over 230 million offenders. Neither Cisive’s supplemental criminal database nor that of our competitors should be considered a “national criminal check”. When run as a standalone search this and other similar competitor databases are incomplete and not considered FCRA compliant. In the event of a hit or potential hit, Cisive ensures accuracy and FCRA compliance by taking the next step and completing a county and/or statewide search based on the preliminary hit information provided through this database.

This search is NOT intended to replace a regular county or statewide criminal search. The purpose of this search is to provide an additional level of due diligence in an effort to discover criminal activity outside the established criminal search locations.

Q. We need to verify former military service on one of our applicants. Are there any special forms required to do this in addition to the standard application and FCRA release forms?

The National Personnel Records Center (NPRC) maintains records for former military service members. To obtain information from NPRC, Standard Form 180, “Request Pertaining to Military Records”, is required to be completed by the military service member. The fully executed form should then be sent to Cisive for processing. You may obtain a copy of that form by right-clicking the hyperlink above, or you may go directly to the following Web site to print a copy of the form: http://www.archives.gov/research_room/obtain_copies/standard_form_180.pdf.

Please be advised that there is a significant delay in receiving a response from NPRC subsequent to their receipt of the completed SF 180. Currently, we are experiencing a delay of approximately 4-6 weeks. We make every effort to expedite the receipt of this information. However, please realize that we have no control over NPRC’s response time, so please be patient. We will keep you updated on the status of the military record verification on a regular basis.

Q. What are the disclosure and authorization requirements under the California law with respect to a California employer who procures a background check on a California resident?

A. California employers should recognize that the terms “consumer report” and “investigative consumer report” have different meanings under the federal Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., (“FCRA”) and the California Investigative Consumer Credit Reporting Agencies Act (“ICRAA”), Cal. Civ. Code § 1786 et seq.

The ICRAA definition of an “investigative consumer report” is much broader than that of the FCRA. The ICRAA defines an investigative consumer report as a consumer report in which information on a consumer’s character, general reputation, personal characteristics, or mode of living is obtained through any means. Under the FCRA, an investigative consumer report is a subset of a consumer report, wherein this type of information is obtained through personal interviews.

The ICRAA disclosure/authorization requirements for preparing an investigative consumer report for employment purposes include (also refer to § 1786.16):

  • The person procuring or causing the report to be made has a permissible purpose.
  • The person procuring or causing the report to be made has a permissible purpose.
  • The person procuring or causing the report to be made provides a clear and conspicuous disclosure in writing to the consumer at any time before the report is procured or caused to be made in a document that consists solely of the disclosure, that:
    An investigative consumer report may be obtained.
    The permissible purpose of the report is identified.

    The disclosure may include information on the consumer’s character, general reputation, personal characteristics, and mode of living.

    Identifies the name, address, and telephone number of the investigative consumer reporting agency conducting the investigation.

    Notifies the consumer in writing of the nature and scope of the investigation requested, including a summary of the provisions of Section 1786.22.

  • The consumer has authorized in writing the procurement of the report.
    • A sample disclosure/authorization form specifically for California residents should be used in addition to the federal FCRA disclosure/authorization forms.

      Further, also note that the FCRA is stricter with respect to notice and providing report copies in situations where adverse action will be taken based in whole or in part upon information contained in a consumer or investigative consumer report. An employer is required to follow the pre-adverse action and adverse action notification procedures as dictated by the FCRA.

      Also note that the ICRAA provides an exemption of the above disclosure/authorization requirements if the report is sought for employment purposes due to suspicion held by an employer of wrongdoing or misconduct by the subject of the investigation. However, please be careful with this provison.

      This information is intended for informational purposes only and is not to be considered legal advice. Please realize that no publication can anticipate all individual situations and questions that may arise. If you have questions concerning your legal rights and obligations under state or federal consumer reporting laws, or any local laws or regulations governing the acquisition and use of applicant and employee information, please consult with your experienced employment law counsel.


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