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Proposed law would decrease employee privacy rights
by Barbara E. Cohen Aug 6, 2003
Just how far can your employers go to investigate you prior to hiring you or if they suspect you are breaking the law at work? Farther than you might think, but at the moment, they can’t investigate you without your permission, under the terms of the Fair Credit Reporting Act of 1970. Your employer, as well as insurance companies investigating accidents or disability claims, may gather information about you as part of a lawsuit or workplace investigation. The people who do the actual detective work are licensed professional investigators, many of whom are hired by insurance companies and law firms to gather information that the lawyers will present in court. With justifiable concern about national security, there’s plenty of confusion about where the courts draw the line between what’s public and private — and what employers can do to maintain workplace safety and eliminate workplace crime. This year, licensed professional investigators are backing a bill that would give them greater access to employee records relevant to investigations of alleged crimes in the workplace. The Civil Rights and Employee Investigation Clarification Act, HR 1543, would allow employers to hire third-party investigators to conduct workplace investigations, which may be undertaken with greater impartiality by someone other than an employee of the company. The new law would also remove the need for the accused employee’s consent. Under the new law, private investigators would have access to records involved in allegations of drug use or sales, violence, sexual harassment, other types of harassment, employment discrimination, job safety and health violations, as well as criminal activity, including theft, fraud, embezzlement, sabotage or arson, patient or elder abuse, child abuse and other types of misconduct related to employment. Backers of the law include the National Association of Legal Investigators (NALI), which held its annual conference in Indianapolis recently; the National Council of Investigation and Security Services (NCISS), a national trade association representing private security and investigative professionals; and ASSIST, the Associated Security Services and Investigators of the State of Texas, among other professional groups. However, the National Workrights Institute (NWI), a not-for-profit research and education organization dedicated to advancing human rights in the American workplace, fears that the bill eliminates necessary protections for the falsely accused. According to Lewis Malty, president of NWI, in testimony before the House Subcommittee on Financial Institutions and Consumer Credit on June 16, “There is much that is wrong with the way employment investigation is practiced today. Many employment screen[ing]s are highly intrusive and invade people’s privacy. Others are highly arbitrary.” Malty cited the rise of criminal record checks by employers following the events of Sept. 11, a situation that has increased the work for companies supplying such records at least twofold in the last two years. Some of these records are being used legitimately, as in the elimination of school bus driver candidates with DUI convictions. However, records checking should never replace the careful screening of job candidates by trained human resources professionals, Malty said. Malty fears further abuses if the pending bill becomes law. The National Workrights Institute advocates further amendments to safeguard employees’ rights before HR 1543 passes. At the NALI convention in Indianapolis, certified legal investigators said they tend to uphold the law much more often than they break it, because breaking it is a costly way of doing business. As lawyer Whitney D. Mauk, of the local firm Kiefer & McGoff, advised, “It pays to exercise an ‘abundance of caution’ when conducting interviews with company employees. Any statements they make need to be collected in a fair and ethical manner to be admissible in court.” In addition to the danger of losing their license, private investigators and their employers can rarely afford the luxury of trampling your legal rights. Among other things, getting embroiled in a long court case to test the boundaries of privacy laws would keep them from earning a living. Infractions tend to result from oversight caused by differences in laws between jurisdictions rather than intentional flaunting of legal restrictions. Licensed professional investigators see the proposed bill as evidence of the growing acceptance of their profession within the criminal justice system. “We’d like to see laws reflect the status of licensed professional investigators as adjuncts to law enforcement officials and attorneys, interested in establishing objective facts for the administering of justice,” said Chuck Blessing, founder and chief of investigations at Blessing Investigations & Associates of Indianapolis. “We [licensed professional investigators] want to keep the scales of justice balanced.”
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