Privacy Issues in the Community College Workplace

Non-employee applicants for peace officer positions have means at their disposal to examine employment-related information that may be possessed by an employer. For example, the case of Johnson v. Winter , 40 addresses the issue of a non-employee applicant who sought background information compiled by the Santa Clara County Sheriff’s Department. In general, the basis for the applicant’s demand for disclosure was the California Public Records Act. 41 However, the court specifically held that:

“We agree, therefore, that to the extent the file contains matters obtained with the understanding implicit or explicit that such matters could be kept confidential, the Court was correct in denying disclosure of those matters. However, we cannot agree that as a matter of law, without a factual determination, all matters contained within Appellant’s applicant investigation file are privileged.” 42

If a peace officer or applicant demands to see his/her background investigation, the department should seek legal counsel’s input regarding its obligation to turn over the materials.

4. P OLICY FOR R ESPONDING TO R EFERENCE C HECKS

Privacy rights are an issue, not only for employers who are conducting reference checks, but also employers who are responding to reference checks.

All employers need a background information response policy. Many employers have a policy to provide no information to background investigators, while others permit varying levels of cooperation. It is understandable that many employers choose not to provide information for fear of legal defense costs or liability. But, those employers must recognize that there will be occasions, such as requests from police departments, when the law requires them to provide detailed information about former or current employees.  Request that reference be received and maintained in confidence, and only provide information after the prospective employer agrees to provide confidentiality.  Pick one of three options and use that option for each and every response. (1) Provide a full disclosure revealing all relevant facts about the applicant’s background. (2) Verify the former employee’s dates of employment, position and other basic information. (3) Give no information at all.  Before preparing to give any response, make sure that the agency has received a written waiver signed by the applicant.  Have a centralized procedure for responding to requests. For example, requests for written responses might be distributed to the former employees’ supervisors, but all of them should be reviewed by the human resources director, personnel officer, or some other high-level manager. The review official should make sure that the reference is supported by documentation, factual, and consistent with other reference responses. An employer background response policy should include the following elements:

Privacy Issues in the Community College Workplace ©2021 (c) Liebert Cassidy Whitmore 18