Finding the Facts - Disciplinary and Harassment Investigation

b. Definition of “Investigative Consumer Reports” Under ICRAA, “investigative consumer reports” include any report on the “character, general reputation, personal characteristics, or mode of living” of an applicant or employee. c. Definition of “Investigative Consumer Reporting Agency” An “investigative consumer reporting agency” means any person who, for monetary fees or dues, engages in whole or in part in the practice of collecting, assembling, evaluating, compiling, reporting, transmitting, transferring, or communicating information concerning consumers for the purposes of furnishing investigative consumer reports to third parties, but does not include any governmental agency whose records are maintained primarily for traffic safety, law enforcement, or licensing purposes, or any licensed insurance agent, insurance broker, or solicitor, insurer, or life insurance agent.” d. Definition of “Consumer” The term “consumer” includes “a natural individual who has made an application to a person for employment purposes.” e. Definition of “Employment Purposes” “Employment purposes” when used in connection with an investigatory consumer report means a “report used for the purpose of evaluating a consumer for employment, promotion, reassignment, or retention as an employee.” f. Does ICRAA Apply to Investigative Reports? No. Civil Code section 1786.16 subdivision (c) exempts from the notice and disclosure requirements any investigative reports either “procured or caused to be prepared by an employer, 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.” g. Must the Investigation and Investigation Report Comply with the Provisions of the Fair Credit Reporting Act? No. While the initial FCRA legislation was silent on this point, Congress clarified in its December 2003 amendments that FCRA does not apply to employer investigations into possible employee misconduct. The Act now specifically exempts from disclosure communications related to employee investigations if those communications:  Relate to suspected employee misconduct, or are required to comply with federal, state, or local laws and regulations, including any preexisting written policies of the employer; and

 Are not provided to anyone other than the employer or an agent of the employer.

Additionally, employers should note that FCRA does require the employer to disclose a summary of the investigation (but not sources) subsequent to any adverse action based in whole or in part on the investigation. 151 However, this requirement will have little impact in California because the due process principles articulated in Skelly v. State Personnel Board are broader. As

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