Privacy Issues in the Workplace

i. Employer Obligations When a Reference Check is Conducted By an ICRA When a background investigation is conducted by an ICRA instead of being conducted in-house there are numerous restrictions on the conduct of the investigation.  The Act requires an ICRA to permit a consumer to inspect its files, “except that the sources of information, other than public records and records from data bases available for sale, acquired solely for use in preparing an investigative consumer report and actually used for no other purpose need not be disclosed.”  At any time before the report is procured or caused to be made, the employer must make a “clear and conspicuous disclosure” to the applicant in a document that consists solely of the disclosure that: (i) An investigative consumer report may be obtained, (ii) the permissible purpose of the report is identified, (iii) the disclosure may include information on the consumer’s character, general reputation, personal characteristics, and mode of living, (iv) identifies the name, address, and telephone number of the investigative consumer reporting agency conducting the investigation, and (v) notifies the consumer in writing of the nature and scope of the investigation requested, and also including a summary of the right to inspect the report.  Also, the employer must “provide the consumer a means by which the consumer may indicate on a written form, by means of a box to check, that the consumer wishes to receive a copy of any report that is prepared. If the consumer wishes to receive a copy of the report, the recipient of the report shall send a copy of the report to the consumer within three business days of the date that the report is provided to the recipient, who may contract with any other entity to send a copy to the consumer. The notice to request the report may be contained on either the disclosure form . . . or a separate consent form. The copy of the report shall contain the name, address, and telephone number of the person who issued the report and how to contact that person.” 73  The applicant must provide written authorization to procure the report, including but not limited to, circumstances when the report will contain medical information. 74

NOTE: As discussed under the FCRA above, Districts must narrowly tailor the written authorization to procure the report so as to not to be found to have willfully violated the provisions of the FCRA. 75 We recommend narrowly tailoring the authorization under the ICRA as well.

 The employer must certify to the ICRA that it has made the above disclosures, and must agree to provide a copy of the report to the applicant. 76

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 25