Does the Fair Credit Reporting Act apply to fact-finding investigations?
Yes. In 1999, the Federal Trade Commission (FTC) issued an advisory opinion (known as the Vail letter). The Vail letter stated that employers using outside consultants (including lawyers) to investigate employee claims, such as sexual harassment, must comply with all the cumbersome requirements of the Fair Credit Reporting Act (FCRA). However, members of the HR department who conduct internal investigations do not need to follow FCRA requirements. FCRA requirements are quite cumbersome and tend to interfere with good fact-finding investigations. For example, the FCRA requires that the accused be notified of the pending investigation and give his or her consent to the investigation before it begins. Since federal and state laws require investigations of discrimination complaints, this FCRA requirement creates quite a problem or employers engaging outside entities to conduct their fact-finding investigations. An accused with prior knowledge of the complaint can arrange a cover story ahea
