Q. I have received a complaint from one of my employees alleging sexual harassment by a supervisor in my HR department. I want to bring in an independent investigator, but I’m concerned I’ll have to notify the subject of the investigation. I’ve heard that the(FCRA) requires me to notify employees before investigating these types of complaints through a third party. Obviously, this would make things uncomfortable for the employee who filed the complaint. Does the FCRA’s notice requirement apply to a sexual harassment investigation?
A. No, but your confusion is understandable. Before 2003, the FCRA required employers to provide employees notice and obtain their consent before investigating work-related misconduct through a third party. The FCRA further mandated that the subject employee receive a copy of the investigation, which typically identified the accuser and other witnesses. Concerned that the FCRA dissuaded employee complaints about sensitive matters like sexual harassment, Congress amended the law to exclude employee misconduct investigations.
While the amended FCRA provides significantly more latitude to investigate work-related misconduct, employers should be aware of the law’s current treatment of third-party investigations. While employee consent is no longer required and communications related to the investigation are exempt from disclosure, an employer can’t leave the target of the investigation completely in the dark. Before taking adverse action, the employer must provide the accused with a summary of the “nature and substance” of the investigation. The report need not identify the complainant, witnesses or other information sources.