This Month Only! >> $20 off and a FREE SHRM tote with your membership and code TOTE2018!
Sign up for free email newsletters and get more SHRM content delivered to your inbox.
Is your employee handbook keeping up with the changing world of work? With SHRM's Employee Handbook Builder get peace of mind that your handbook is up-to-date.
Build competencies, establish credibility and advance your career—while earning PDCs—at SHRM Seminars in 12 cities across the U.S. this spring.
#SHRM18 will expand your perspective – on your organization, on your career, and on the way you approach HR. Join us in Chicago June 17-20, 2018
Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.
Vol. 46, No. 3
Outsourcing Background Checks
While legal experts say the law is fairly clear in how the Fair Credit Reporting Act (FCRA) applies to pre-employment background checks, a swirl of controversy surrounds the law's application to investigations of current employees, especially if misconduct is alleged.
The controversy was prompted by an April 1999 Federal Trade Commission (FTC) staff opinion known as the Vail letter. (The opinion was a response to an inquiry by attorney Judi Vail.) The interpretation suggested that FCRA notice and disclosure procedures must be followed in various types of employee misconduct investigations, including sexual harassment investigations, if the probes are handled by a third party.
The Vail letter states that employers who use a third party to investigate a sexual harassment claim must notify the target of that investigation and, in some cases, must provide sensitive information about the probe.
The FTC has acknowledged the problems the Vail letter poses. But the commission believes the only way to fix the problem is to amend the law.
The Society for Human Resource Management (SHRM) is among a number of employer groups pushing for a legislative change. In congressional testimony supporting a legislative fix, SHRM board chair Michael Lotito noted the Vail interpretation seems to contradict recent Supreme Court rulings, which make it clear that employers must take immediate action to ferret out harassment in the workplace. The FTC's interpretation serves as a disincentive for employers to use outside help in conducting investigations, even though "employees are oftentimes more open and forthcoming with outside investigators because of their objectivity and insulation from internal politics and pressure," Lotito said in his testimony.
Although legislative action stalled last year, SHRM and other groups are renewing a push for clarification in the FCRA statute to allow employee misconduct investigations to go forward unhindered.
You have successfully saved this page as a bookmark.
Please confirm that you want to proceed with deleting bookmark.
You have successfully removed bookmark.
Please log in as a SHRM member before saving bookmarks.
Please sign in as a SHRM member before saving bookmarks.
Please purchase a SHRM membership before saving bookmarks.
An error has occurred
Recommended for you
Guide to Screening Candidates
Join SHRM's exclusive peer-to-peer social network
SHRM’s HR Vendor Directory contains over 10,000 companies