FACTA does not require you to give the employee being investigated a copy of the third-party investigator’s report. If adverse action is taken, in whole or in part, based on the investigator’s report, you must only provide the employee with a summary report. The summary report need not disclose the identity of the individuals interviewed or the sources that provided information used in the report.

The third-party investigations can relate only to:

• Suspected misconduct relating to employment
• Compliance with federal, state or local laws and regulations
• Compliance with rules of a self-regulatory organization
• The employer’s existing written policies

The third party can provide the report only to you or your agent, or federal, state or local agencies or a self-regulatory organization with jurisdiction over you. The third party cannot give the report to other people, presumably including labor unions. Following a third party’s investigation, employees against whom you have taken adverse action may argue that you must have had reasonable suspicion before ordering the investigation and/or that existing or written policies were not in place when that investigation began.

State law contains a specific exclusion for procuring investigative credit reports when you suspect the subject of misconduct or wrongdoing.1 However, if in the course of an investigation, you make an investigative consumer report about other employees, you must provide them with the forms and notices required by law.

See Harassment Investigation for additional information.

1. Civ. Code sec. 1786.16