The problems attached to the FCRA investigative consumer report disclosure requirements are worrisome. Despite the statutory language, FTC staff believes that an investigative report disclosure can be treated the same as a standard consumer report disclosure and therefore can be made at any time before an investigative report is ordered. If the Section 606 language is strictly interpreted, however, it could bring some very critical investigations to a screeching halt. For example, consider an incident that involves violence in the workplace. Typically, if an employer has engaged an attorney or investigator to conduct an investigation, it is because there are genuine concerns about employee or consumer safety.
Legitimate fears relate to the potential conduct of a specifically volatile employee.
Many regulators believe that a strict interpretation of FCRA would bring many customary and prudent practices to a halt. Thus, they seek to focus on Congress's intent, rather than the letter of the law. Assuming the FTC is correct in its opinion that an investigative consumer report may be authorized in the same manner as a consumer report, many employers and their representatives may be caught unawares. If an employer has not secured a blanket pre-authorization and disclosure from its workforce, it would be necessary to secure the authorization at the time of a suspected incident. Certainly, that action would alert a moderately suspicious employee.