Privacy Issues in the Community College Workplace

The court in the Long Beach case, for example, found that the following questions impermissibly violated the examinee’s privacy rights: 1) Have you had any major operations within the past ten years?; 2) Have you had sex with men or animals?; 3) How often do you masturbate?; 4) Do you cheat on your wife?; 5) Have you ever had an automobile accident while you were driving?; 6) Have you written any bad checks in the past three years?; 7) Have you suffered a nervous breakdown within the past ten years? These questions were found to be entirely unrelated to the person’s employment duties, and thus beyond the permissible scope of questioning. 2. P UBLIC S AFETY O FFICERS Under Government Code section 3307, the POBR gives a peace officer the absolute right to decline to take a polygraph examination even when the police officer is under investigation for suspected criminal activity. 111 Admissions made as a result of a threatened polygraph examination will be excluded by a court in considering the merits of resulting disciplinary action. 112 Even if a police officer were to submit to a voluntary polygraph examination, the results are probably not admissible in a subsequent administrative hearing .113 However, police departments may require polygraph examinations for officers who voluntarily seek to be promoted or transferred into specialized divisions where work is unusually sensitive and requires the highest level of integrity; this requirement has been held to not invade police officers’ right to privacy. 114 F. R ESPONDING TO R EFERENCE C HECKS While conducting a thorough background investigation is an important human resources function, it is equally important to provide information about current or former employees without creating legal liability for the agency. This section discusses employers’ obligations to provide information, potential legal pitfalls associated with doing so, and legal protections which are available. 1. T ORT C LAIMS There are numerous civil "tort" claims an employee may raise related to the provision of a job reference. A tort cause of action is a claim that one individual has wrongfully harmed another. The following are the most common claims made by unsuccessful job applicants:

 Defamation: Defamation is one of the most popular tort claims in job reference cases. A defamatory job reference is one that makes false assertions of fact about the job applicant that causes a prospective employer to decline to hire the individual. For example, if a former employer knows that the applicant is fully literate, it should not report to the prospective employer that the applicant cannot read. 115  Emotional Distress: Unsuccessful applicants also might sue for intentional and/or negligent emotional distress. Emotional distress occurs when an

Privacy Issues in the Community College Workplace ©2021 (c) Liebert Cassidy Whitmore 37