Employment Law Articles

Employee Misconduct Investigations Under FCRA

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On December 4, 2003, President Bush signed the Fair and Accurate Credit Transactions Act of 2003 (“FACT”) into law. 108 P.L. 159 (2003). The Act, in part, changes a controversial provision of the Fair Credit Reporting Act (“FCRA”) governing third party employee misconduct investigations. 15 U.S.C. 1681-1681u. Prior to the passage of FACT, the Federal Trade Commission (“FTC”), in interpreting a set of 1997 FCRA amendments, took the position that employers were required to obtain employee permission prior to initiating third party misconduct investigations against them, and then had to share the investigatory results with the employee prior to taking any “adverse action.” FACT removes the prior permission and pre adverse action notice requirements, and limits the information employees are entitled to receive once an “adverse action” is taken.


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