Privacy Issues in the Workplace

NOTE: There are also significant restrictions placed upon consumer reporting agencies, including the obligation to reinvestigate matters included in a report which are disputed by an applicant.

ii. Restrictions on Information in Consumer Report There are strict limitations on the types of information that may be included in a consumer report. 64 The following is a list of the categories of information which must be excluded:  Cases under Title 11 or under the Bankruptcy Act that, from the date of entry of the order for relief or the date of adjudication, as the case may be, pre-date the report by more than 10 years.  Civil suits, civil judgments, and records of arrest that, from date of entry, pre-date the report by more than seven years or until the governing statute of limitations has expired, whichever is the longer period.  Accounts placed for collection or charged to profit and loss, which pre-date the report by more than seven years.  Any other adverse item of information, other than records of convictions of crimes which, pre-dates the report by more than seven years. In any case, a consumer reporting agency is prohibited from furnishing an employer with a report containing medical information unless the applicant consents. 66 The FCRA does not identify the requirements for such consent, but we recommend that it be in writing, signed by the applicant, and be drafted in conformity with the Confidentiality of Medical Information Act, discussed later in this workbook. Also, employers are cautioned not to seek medical information until after a conditional offer of employment has been made. b. The Investigative Consumer Reporting Agencies Act The Investigative Consumer Reporting Agencies Act (ICRA) 67 is California legislation which, in many respects, mirrors the Fair Credit Reporting Act (above).  Paid tax liens which, from date of payment, pre-date the report by more than seven years. The above limitations do not apply when a report will be used in connection with the employment of any individual at an annual salary which exceeds $75,000. 65

NOTE: Unlike the FCRA, even if an employer conducts reference checks itself, and does not employ the services of a consumer reporting agency, the employer may still be subject to the Act though the requirements are less onerous when reference checks are conducted in-house. 68

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 23