Privacy Issues in the Workplace

In any case, a consumer reporting agency is prohibited from furnishing an employer with a report containing medical information unless the applicant consents. 67 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) 68 is California legislation which, in many respects, mirrors the Fair Credit Reporting Act (above).

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. 69

The requirements of the Act are triggered when an employer utilizes an “investigative consumer reporting agency” (ICRA) to prepare an “investigative consumer report” regarding a “consumer”:

 An ICRA is statutorily defined as “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 . . .” 70  An investigative consumer report is a “report in which information on a consumer’s character, general reputation, personal characteristics, or mode of living is obtained through any means . . .” 71 Reference checks commonly address the character, reputation, and mode of living of prospective employees and would appear to meet the definition of an investigative consumer report. However, for the purpose of AB 22’s limitation on the job positions for which a credit report may be sought, “consumer credit report” does not include a report that (a) verifies income or employment and (b) does not include credit-related information, such as credit history, credit score, or credit record. 72

Any third party who is hired to conduct reference checks on behalf of an employer would appear to meet the definition of an ICRA.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 24