Privacy Issues in the Workplace

disclosure records relating to a person. 28 These provisions require the Government to take appropriate safeguards to protect the information collected through the questionnaires. Thus, the Government’s collection of the information does not violate a constitutional right to information privacy. DFEH Guidance on Transgender Rights in the Workplace 29 Employers “should not ask questions designed to detect a person’s gender identify, including asking about their marital status, spouse’s name, or relation to household members of another.” 30 Employers should also “not ask questions about a person’s body or whether they plan to have surgery.” 31

B. C ONDUCTING R EFERENCE AND B ACKGROUND C HECKS Employers have a strong interest in, and may even be statutorily required, to conduct reference or background checks to determine whether job candidates are qualified for employment and whether current employees are qualified for promotion or new assignments. An employer should review its background check process to make sure that it does not violate applicants’ privacy rights. Specifically, employers should verify that all inquiries may be justified by a legitimate reason. Background inquiries should be tailored to determine if the applicant can perform the essential duties of the job and will otherwise be a quality employee. These might include questions about the applicant’s job skills, disciplinary history, initiative, willingness to learn new tasks, ability to function with co-workers and supervisors, leadership skills, as well as innumerable other job-related factors. By contrast, questions about religious beliefs, sexual preferences or habits, financial condition, family relationships, and other such private information are seldom job-related. The only proper scope of a background check is one that is job related – to ascertain an applicant’s qualifications for employment. 1. I NFORMATION A VAILABLE F ROM P UBLIC S OURCES In conducting background checks on applicants, many employers resort to publicly available information, including online resources. “Googling” the name of an applicant to search for entries in blogs, or social networking websites like LinkedIn or Facebook has now become a common practice for many employers. This type of online background check does not generally put the prospective employer at legal risk for an invasion of privacy claim because the information obtained online is publicly available, and in many instances it is posted by the job applicant on his or her LinkedIn or Facebook page. 32 However, an employer may want to employ one of the following approaches in its online background checks:

 Provide notice to the job applicant prior to searching. The employer can either access the site before there is a chance for the job applicant to modify it, or access the site after the applicant has had an opportunity to modify the site/page.  Access without notice to the job applicant, but provide the applicant with an opportunity to respond to questions concerning online information.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 15