Privacy Issues in the Community College Workplace

Education Code section 87013 similarly requires that a district fingerprint each employee in an academic position within 10 working days of the employee’s first day of employment. The employee must have a local law enforcement agency with jurisdiction over the district fingerprint her or him. The law enforcement agency must then transmit the fingerprints to the Department of Justice. If, however, the employee previously worked at a California school or community college, the employee does not need to comply with this section.

E. P OLYGRAPH E XAMINATIONS

1. E MPLOYEES IN G ENERAL Labor Code section 432.2, prohibiting the use of polygraph examinations, only applies to private employers. But, Government Code section 3307 protects public safety officers from compelled polygraph examinations during the course of employment. While there is no existing state statutory prohibition which applies to public sector employees in general, the California Supreme Court held in Long Beach City Employee Assn. v. City of Long Beach , 108 that non-safety public employees could not be required to submit to polygraph examinations. The Court in the Long Beach City Employee Assn. case stated that the mind is a “quintessential zone of human privacy” which a polygraph examination is specifically designed to overcome by ‘compelling communications of thoughts, sentiment, and emotions’ which the examinee may have chosen not to communicate.” The Court further expressed concern that repressed beliefs, guilt feelings and fantasized events, not just actual events, can impact the polygraph examination results. The court noted that pre-employment polygraph testing, which has frequently been used as a fishing expedition, is inherently unreliable, and often involves “shockingly intrusive questions.” The Court did not reach the issue of whether applicants for public sector employment could be required to take a polygraph test. Part of the rationale of the Long Beach decision, however, was that there was no reason to treat public sector employees differently with respect to polygraph examinations than private sector employees, who are protected by statute from such examinations. Thus, polygraph exams for non-sworn position applicants are not recommended. The examinations should only be given where the agency can show a compelling reason for requiring the test. Additionally, if polygraph examinations are given to applicants (as they typically are to peace officer applicants), the questions must be narrowly tailored to serve the legitimate interests of the agency. In Thorne v. City of El Segundo , 109 the defendant city had no standards limiting the scope and areas for questioning during a police applicant polygraph examination. As a result, the examiner intruded into off-duty non-job-related sexual activities. The court deemed that line of questioning so invasive that it could not be justified under any level of scrutiny. To avoid this situation, employers should thus provide the examiner with a standard list of questions and instruct the examiner not to deviate from the identified line of questioning. In any polygraph examination, employers should only ask questions related to the job duties of the specific position.

Privacy Issues in the Community College Workplace ©2019 (c) Liebert Cassidy Whitmore 37