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Vail Letter Regarding Investigations into Workplace Misconduct is Repealed

On February 4, 2004, the Federal Trade Commission (FTC) announced that the new amendments to the Fair Credit Reporting Act (FCRA) concerning the investigation of current employees for suspicion of misconduct would take effect March 31, 2004.

The new law effectively repealed what had been known as the “Vail” letter.  In a 1999 staff opinion letter, the FTC held that the full FCRA notice and disclosure rules that apply to employment screening also must be followed when it comes to any misconduct investigations of current employees.  This was heavily criticized by human resource, legal, and security experts as crippling investigations of sexual harassment claims, as well as other misconduct such as theft or workplace violence.

Amended in late 2003, the FCRA will exempt third party investigations of current employees from many of the FCRA notice and consent requirements when the investigation concerns suspected wrongdoing relating to employment.  If adverse action is taken as a result of such an investigation, the employee is still entitled to a summary containing the nature and substance of the report, but not the names of individuals that provided information for the preparation of the report.

Many state consumer laws already provided for this specific exemption, which previously conflicted with the FTC ruling.  Employment Screening Services will provide more detailed information in the future as the implications of the new law develop.
 

The following quotes were taken from actual employee performance evaluations at a large U.S. corporation.

• “He sets low personal standards and then consistently fails to achieve them.”

• “When he opens his mouth, it seems it is only to change feet.”

• “This young lady has delusions of adequacy.”

• “Since my last report, this employee has reached rock bottom … and has started to dig.”

• “He would be out of his depth in a parking lot puddle.”

• “This employee should go far … and the sooner he starts, the better.”

• “Got a full 6-pack, but lacks the plastic thing to hold it together.”

• “When his IQ reaches 50, he should sell.”

• “If you see two people talking and one looks bored … she’s the other one.”

• “Some drink from the fountain of knowledge; he only gargled.”

• “If you give him a penny for his thoughts, you’d get change.”

• “He doesn’t have ulcers but he’s a carrier.”

• “Works well under constant supervision and cornered like a rat in a trap.”

• “This employee is really not so much of a ‘has-been’ but more of a definite ‘won’t be.’”

• “His men would follow him anywhere … but only out of morbid curiosity.”

The Pennsylvania Department of Transportation (PENNDOT) now restricts access to its driving records to only those entities they have specifically approved to have a permissible purpose for the records.  PENNDOT has implemented an approval and tracking system whereby they can determine the third-party end user of every driving record released.  Furthermore, when a driving record is released for employment purposes, PENNDOT will notify the driver in writing and include the name of the company that obtained the driving record.

Employment Screening Services has been approved by PENNDOT as an authorized pre-employment screener.  Before we can obtain PA MVR’s, clients must complete a one time “Affidavit for Intended Use” form and return it to ESS.  Approval takes approximately 7-10 days after which ESS will have instant access to PA MVR’s on your behalf.  ESS no longer has any other means to obtain PA MVR’s except this process.  PENNDOT reserves the right to audit the records of both ESS and approved clients to insure proper authorization and use of driving records.

Click Here to download the PENNDOT form.  Please fax the completed form to ESS (1-800-321-2905) and mail the original, notarized form to Employment Screening Services, Inc., 627 E. Sprague, #100, Spokane, WA 99202.