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Ross Runkel

Fair Credit Reporting Act:
Where Do We Go From Here?

By Judi Vail    Bio  email
Attorney

Over the past year analysis of the Fair Credit Reporting Act ("FCRA"), 15 USC § 1681, et seq. has encompassed everything from employment law to litigation practice to malpractice concerns.  The intent of this article is to provide the reader with a broad overview of recent legislative developments, legal, NLRB and collective bargaining issues

Arguments have been crafted to try to distinguish surveillance and "incident" investigations from investigations that focus on the general character and fitness of an individual consumer.

The recent spate of 11th Amendment Bar cases may prompt attorneys representing public sector Employers to try to bring the enforcement provisions within the expanding state protections. See James P. Hanlon & James J. powers, States as Defendants in Employment Litigation: Beyond Alden v Maine.

FCRA Amendments

No definitive legislation amending the FCRA is imminent. H.R. 3408 has been introduced to exempt certain workplace investigations from the FCRA. H.R. 3408 was the subject of recent comments. The Federal Trade Commission ("FTC") submitted over 20 pages of written explanation outlining FCRA history, application and identified problems with H.R. 3408.

Until recently Employer groups have been the most vocal in their disapproval of the current FTC FCRA interpretation; now Unions and consumer rights groups are beginning to make their views known. General Counsels for the AFL-CIO acknowledged the prudence of using an objective third party ("CRA") in conducting workplace investigations. Nevertheless, the AFL identified potential abuses in workplace investigations and advocated for retaining statutory restrictions and protections provided to employees under the FCRA. [AFL-CIO Testimony]

Collective Bargaining Issues

Little attention has yet been paid to the collective bargaining issues surrounding the FCRA. The Act does not mandate the use of CRAs in workplace investigations. Therefore, neither a Union nor an Employer has recourse to a contractual Savings Clause to resolve the issue.

Mandatory Subject of Bargaining

Arguably, implementing a policy of obligatory authorization by current employees for using CRA’s would be considered a mandatory subject of bargaining. The investigation may significantly impact the terms and conditions of employment. Therefore, if the workforce is unionized, there is an obligation to bargain when the policy covering existing employees is introduced.

Employees versus Applicants

Generally, applicants are not employees within the meaning of the LMRA. Thus, as applied to applicants the use of CRAs may not be a mandatory subject. However, where an Employer opts to use a blanket authorization that extends throughout the individual’s tenure of employment does the policy then become a mandatory subject? It then extends beyond the scope of a condition of employment. Nevertheless, at a minimum, the Union could demand information on an Employer’s policy and the Employer would have a duty to disclose.

Contract Provisions

The "black letter rules" of collective bargaining; zippers; reopeners; management rights; management rules; express waivers; and, waivers by inaction remain the same. The same analysis to FCRA implementation would apply.

On the Head of a Pin?

Can a Union authorize investigations on behalf of its members? Highly unlikely - but unresolved. The FCRA is clear in prescribing procedure and prohibiting the waiver of individual employee rights. Will inclusion in a collective bargaining agreement preclude an employee pursuing a statutory remedy?  Highly unlikely – but unresolved. See Wright v. Universal Maritime Service Corp (U S Supreme Court 11/16/1998).

In the final analysis a Union must decide how embroiled it will become in bargaining FCRA policies. A Union may be in an untenable position, balancing the competing interests of bargaining unit members. Comparable to sexual harassment investigations, the FCRA investigations could create conflicting duties.

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