Finding the Facts - Disciplinary and Harassment Investigation

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 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. 146 However, this requirement will have little impact in California because the due process principles articulated in Skelly v. State Personnel Board are broader. As discussed above, the Skelly principles require pre-discipline disclosure of the report itself, rather than a post-discipline summary. Thus, any disciplinary action that triggers Skelly due process rights requires a higher level of disclosure than FCRA. But, note that FCRA will apply where an employer relies on an investigation report to impose non-severe discipline. For example, based on a report, an employer may decide to impose a letter of reprimand. Such discipline does not trigger Skelly rights. Thus the FCRA disclosure requirements control.  Are not provided to anyone other than the employer or an agent of the employer.

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