Privacy Issues in the Workplace

 Even if the applicant has elected not to receive any information, if an employer takes any adverse action (a denial of employment or any decision made for an employment purpose that adversely affects any current or prospective employee) as a result of receiving such public records, the employer shall provide to the consumer a copy of the public record. 83  The election to receive or not to receive any public records that may be obtained is to be made on a form provided by the employer and described as following: “any person shall provide on any job-application form, or any other written form, a box that, if checked by the consumer, permits the consumer to waive his or her right to receive a copy of any public record obtained pursuant to this selection.” 84 iv. FACT Act May Require Employer Investigation of Furnished consumer Data 85 . The Fair and Accurate Credit Transactions Act of 2003 (FACT) amended the FCRA to increase the accuracy and integrity of information furnished to consumer reporting agencies. There are certain situations in which an employer can be a furnisher of data pursuant to FCRA. The FTC determined that certain companies, such as reference check providers, are consumer reporting agencies under FCRA. Therefore, employers that provide payroll and other employee related information to consumer reporting agencies as part of outsourced services will also be considered furnishers under FCRA. As a result, these entities will be subject to new federal regulations effective July 1, 2010. These new regulations require that employers who furnish information to consumer reporting agencies must now investigate information that an employee directly disputes to the employer. The employer is required to conduct a reasonable investigation to determine the validity of the employee’s dispute. These contemplated direct disputes require that the employee provide the employer with sufficient information regarding the employment relationship and the “inaccurate” information to enable the employer to conduct an investigation. The investigation must be completed within 30 days (an additional 15 days is allowed if an employee provides new information.) If the information furnished by the employer was inaccurate, it must be corrected by notification to each consumer reporting agency that received the incorrect information. v. Frivolous or Irrelevant Disputes Not all disputes must be investigated – identifying information, such as name, date of birth, social security number need not be investigated. Also, if the employee doesn’t provide sufficient information to investigate, the employer need not investigate. The employer must notify the employee that the matter will not be investigated because it is frivolous or irrelevant within five (5) days of making that determination. If additional information is needed to conduct an investigation, it should be requested. Thus, the best option for avoiding the requirements of the Act, as well as those imposed by the FCRA, is to conduct reference checks in-house.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 27