Answer by Andy Zavoina: The word "misconduct" is neither in the 1997 amended FCRA nor the commentary to the FCRA under 16 CFR 600. It is in the new FCRA at 603(x)(1)(B)(i) which excludes certain communications for employee investigations.
Answer by Mary Beth Guard: Under a 1999 FTC staff opinion known as the "Vail" opinion, if an employer was going to utilize a third party to do an investigation of an employee, the employer was supposed to (1) notify the accused of the investigation, (2) seek consent from the accused, (3) provide the accused with a copy of the report, or (4) wait a "reasonable" amount of time between giving the accused a copy of the report and taking adverse action. FACTA effectively legislatively reverses the Vail opinion and, as a result, employers no longer have to take those steps. For full details about the conditions under which a consumer report may be pulled in connection with employment purposes, see Section 604 of the amended FCRA:
First published on BankersOnline.com 1/31/05