|
In a recent advisory opinion letter, the
Federal Trade Commission (FTC) declared that a sexual harassment
investigation report furnished by an outside third party could be a
consumer report under the Fair Credit Reporting Act (FCRA) and, therefore,
subject to the law’s extensive notice and disclosure requirements. The
letter was issued in response to an attorney’s questions about the
application of the FCRA to sexual harassment investigations performed by
third parties such as law firms.
Get your FREE
access to this and 100's of FREE HR resources today.
[Download
Free Policies]
The FTC attorney who authored the letter
determined that a third party investigator fits the definition of a
“consumer reporting agency” since it assembles or evaluates information on
consumers for the purpose of providing a “consumer report” regarding
incidents of harassment to the employer. The FTC attorney also indicated
that the report about the sexual harassment investigation could be either
a consumer report or an investigative consumer report covered by the FCRA
because the report contains information about employees’ character,
general reputation, personal characteristics, or mode of living; and the
information would be used to make an employment decision about the
employees.
[Creating HR Policies or Employee Handbook?]
Under the FCRA, an employer that requests a
“consumer report” from an outside “consumer reporting agency” must comply
with the FCRA’s comprehensive notice, authorization, and disclosure
provisions. This means that an employer would have to notify involved
employees about the sexual harassment investigation, obtain the written
authorization of these employees before ordering the investigative report,
provide notice before taking adverse action, and furnish a copy of the
report to any employee who is terminated or otherwise disciplined as a
result of the report.
This advisory letter is disturbing to many
employment law experts. First, if any outside organization conducts a
sexual harassment investigation, employers are now in the awkward position
of having to provide the resulting report to an employee before the
employee can be disciplined. Typically, these reports are considered
confidential documents by employers and contain information about the
complaining employee that an alleged harasser is not given. In addition,
the report could be used against the employer in a future lawsuit.
Further, because employers that use outside investigators must notify any
involved employees prior to beginning a sexual harassment investigation
and get their express consent to investigate, they may compromise the
investigation by tipping off employees and allowing them to cover their
tracks. As a result of this opinion letter, many employer advocates are
calling for a revision to the FCRA to exempt sexual harassment
investigations. A copy of the opinion letter is available on the FTC’s web
site at
www.ftc.gov/os/statutes/fcra/vail.htm |
Personnel
Policy Service, Inc.
Connect on Linkedin
Like us on Facebook