Letter in Support of Title VI of H.R. 2622

July 22, 2003

Dear Member of the House Financial Services Committee:

Re: Oppose Any Amendment to Title VI of H.R. 2622

On behalf of a diverse coalition of business organizations, human resource professionals, private investigators, security directors and the securities industry nationwide, we write in support of Title VI of H.R. 2622, the Fair and Accurate Credit Transactions Act of 2003. Title VI is legislative language taken from H.R. 1543, the Civil Rights and Employee Investigation Clarification Act introduced by Rep. Sessions (R-TX) and Rep. Jackson-Lee (D-TX), this title will give employers the certainty they need to conduct workplace misconduct investigations through the use of impartial outside third parties, it maintains broad bi-partisan support. It is our understanding that during mark-up of H.R. 2622 on Wednesday, July 23, there will be an attempt to amend Title VI. This coalition urges that you reject any such amendment.

Title VI addresses obstacles to workplace investigations created by a 1999 opinion letter (the Vail letter) issued by the Federal Trade Commission (FTC). The Vail letter states that if an employer uses outside organizations, such as private investigators, consultants, or law firms, to investigate employee misconduct, and the outside organization regularly performs such investigations, then the investigation is deemed a "consumer report" under FCRA and both the employer and the outside investigator must comply with that Act's notice and disclosure requirements.

The Vail letter has effectively chilled employers' ability to utilize expert "outside organizations" to conduct fair, impartial and confidential workplace investigations. Despite the Vail letter, numerous courts and administrative agencies strongly support an employer's use of experienced outside organizations to investigate suspected workplace misconduct, such as threats and other acts leading to workplace violence, securities violations, sexual harassment, racial harassment and theft.

Title VI addresses two major hurdles that the FCRA imposes on workplace misconduct investigations. It amends the FCRA to exclude from the definition of a "consumer report" an investigation concerning: (1) suspected misconduct relating to employment, or (2) compliance with the law, the rules of a self-regulatory organization, or any pre-existing written policies of the employer. If an employer determines that adverse action is necessary based on information obtained through such an investigation, it would be required to provide the employee with a summary of the nature and substance of the investigation, excluding the specific sources of the information, in order for the exemption to apply. The effect of Title VI is that an employer would not need to get consent from an employee before conducting an investigation or disclose the specific details (e.g., the identity of witnesses) of the investigation.

Employers have a duty to apply consistent and fair workplace policies in order to protect employees, customers, and property, and rid the workplace of misconduct, illegal or otherwise. Creating a working environment that is safe and free from violations of workplace policies and/or state and federal law is of paramount importance to the success of an organization. Any amendment would hinder, rather than help employers achieve these objectives, and legislation that prevents employers from achieving this objective on behalf of its employees should be opposed.

Again, we urge your opposition to any effort to replace Title VI of H.R. 2622 with substitute language. If you have further questions please contact Josh Ulman at (202) 463-5507 or Sarah F. Pierce at (703) 535-6030.

Sincerely,

ASIS International
HR Policy Association
International Mass Retail Association (IMRA)
National Council of Chain Restaurants (NCCR)
National Council of Investigations and Security Services
National Retail Federation (NRF)
Printing Industries of America
Securities Industry Association (SIA)
Society for Human Resource Management (SHRM)
U.S. Chamber of Commerce