Privacy Issues in the Community College Workplace

2. O BTAIN A W AIVER A comprehensive waiver is essential to any successful background check. The waiver should inform the applicant of the categories of information that will be sought from former employers and require that the applicant release the prospective employer and former employers from liability pertaining to the background check. We recommend that the background examiner meet with the applicant to discuss the waiver and the background check process. The examiner should explain the waiver and the nature of the information that the agency will be seeking. This is an opportunity both to make sure that the applicant is fully informed about the terms of the waiver – reducing or eliminating the possibility of a subsequent successful legal challenge to the waiver – and to give the applicant the opportunity to disclose information that former employers might reveal. This enables the applicant to explain what he or she expects former employers to say, and to give the applicant’s perspective on those issues in advance. 3. C ONFIDENTIALITY OF S OURCES P ROVIDING R EFERENCES Former employers providing references or other subjective information about job candidates may expect or request that the information they provide will be kept confidential. If an individual or agency requests confidentiality, and the prospective employer agrees to provide it, the individual giving the reference may have a privacy right in the information and opinions that he or she shares with the prospective employer, and the employer may be obligated to keep the information confidential. 35 One court blocked an employee’s effort to obtain information about confidential references provided by third parties. 36 Employers should adopt a filing policy that, under appropriate circumstances, protects the privacy rights of the third parties who give confidential references. These documents should be filed somewhere other than in the personnel file. Placing references in a manila envelope in a personnel file will not guarantee privacy. The better practice is to file confidential references in a different location. While it is true that if an employer uses a consumer-reporting agency to conduct a background check, there is an obligation to disclose the report, both federal law 37 and state law 38 permit consumer-reporting agencies to keep source information confidential. Although there are no express provisions permitting employers to keep such information confidential, it would appear to make little sense to allow a consumer-reporting agency to keep the information confidential and to prohibit an employer from doing the same. Furthermore, it is well established by the courts that confidential references may be withheld from employees. 39 Thus, we interpret both laws to permit source information to be kept confidential. Employees do have a right to inspect their personnel files, but their access to information about third parties who have provided references is restricted. For additional legal discussion on this, refer to Section 5 of this workbook entitled “Personnel Records and Files.”

Privacy Issues in the Community College Workplace ©2021 (c) Liebert Cassidy Whitmore 17