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Consent to Investigate
Oct 14, 1998

The company I work for has requested that all of it's employees and contractors (2000+) sign a form titled "Consent to obtain background investigation reports under the Fair Credit Reporting Act", which gives the company the right to obtain any and all reports including "credit capacity, character, general reputaion, mode of living" to name a few. That part about 'mode of living' sounds particularly invasive. I have been employed here for 8 years and have had AIDS for over a year, so I am not all that worried about being investigated, but I still am not comfortable signing such a form. Is this legal? Can the company make me sign this, or retaliate against me (us) if I don't sign it?

Response from Ms. Breuer

Yes, your company can require that you sign a consent form, allowing them to request a consumer report.

First of all, you need not be concerned about the "mode of living" phrase or the disclosure of you HIV status. The phrase "mode of living" comes from the way the Fair Credit Reporting Act defines a "consumer report" and the FCRA specifies that consumer reports may be used for "employment purposes." Your employer is merely quoting that language, and it's not likely they're planning to do a more invasive search.

Federal law prohibits a consumer reporting agency from disclosing medical information to an employer without the employee's written consent. California law prohibits a consumer reporting company from even maintaining confidential medical information without their consent. If for some reason your HIV status is reported there and you lose your job because of it, you may have a legal action against the reporting agency.

In California you would have a claim under the state constitution for a violation of privacy. For other states laws, consult your local HIV legal services provider.

Finally the FCRA also requires that if employment is denied based on the consumer report, the employer must advise you of this and give you the address of the agency which made the report. If the consumer reporting agency were to illegally include HIV information on a report, and your employer fired you because you have HIV, the employer would need to tell you they fired you as the result of the report. In addition to a privacy claim against the reporting agency, you would then also have a claim of employment discrimination against your employer under the Americans with Disabilities Act.

In sum, it is illegal in California, and likely in other states as well, for the consumer reporting agency to report your HIV status. If they do, it is illegal for your employer to act on that information.

Mary Sylla, HALSA



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