Privacy Issues in the Workplace

 Access the information without notice and provide no opportunity for the applicant to respond; or

 Not access the online information at all.

While information found on public sites on the Internet is readily available to anyone, caution should be used in relying on this information for exactly the same reason. Information found on the Internet may not accurately reflect the qualities or capacities of the applicant in question. In recent years, for example, there have been numerous reports of false information posted either out of spite or merely as a joke. Even if such information is true or accurate, the question still remains whether it is pertinent to the applicant’s qualifications for the position in question. In addition, employers must be careful not to consider information found on the Internet that the employer may not legally consider in screening applicants. For example, social networking pages may provide information about an applicant’s protected status such as the applicant’s age, race, marital status, religion and similar information. This is information that an employer may not consider in making hiring decisions. Accordingly, when employers consider online sources of information, employers should be careful in ensuring that: (1) the information found is true and reliable (2) the information is pertinent to the applicant’s ability to perform the job, and (3) that the information falls into a category that the employer may legally elicit from the applicant during an interview. Additionally, as of January 1, 2013, Labor Code section 980 prohibits an employer from requiring or requesting that an employee or applicant do any of the following: (1) disclose his or her social media username or password; (2) access his or her personal social media in the presence of the employer; or (3) divulge any personal social media. 33 In short, an employer must not request or require employee personal media usernames or passwords, or seek access to an employee’s personal social media, as part of the application process or during employment. Labor Code section 980 does not affect an employer’s “existing rights and obligations” to request an employee to divulge personal social media when “reasonably believed” to be relevant to an investigation into employee misconduct. An employer is also not precluded from asking an employee for a username or password to access employer-issued electronic equipment. 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

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 16