Privacy Issues in the Workplace

 Maintain copies of the waiver, written questions, and the agency’s responses.

Following a comprehensive policy such as this will help the agency avoid accusations of favoritism, prevent supervisors from drafting emotional, inaccurate or unsupportable references, and preserve the agency’s legal defenses. If an employer does intend to submit fingerprints to the State to obtain a criminal background check, it should use the Department of Justice’s Live Scan program. This program enables the Department of Justice (“DOJ”) to receive electronically scanned fingerprints and perform records checks. However, the DOJ imposes strict confidentiality requirements and warns employers not to release the results of the criminal background checks. A Ninth Circuit Court of Appeals case held that no invasion of privacy tort claim was stated where an employer deceived a credit bureau as to its purpose for requesting two credit reports about a job applicant who was bankrupt. The employer’s and credit bureau’s methods were not unreasonably intrusive, the information was used to make a hiring decision, and it was not published or disseminated. 42 The process by which an agency requests and obtains credit information from job applicants must be structured with standards, guidelines, definitions and limitations precisely indicating the job-related reason for requesting the information. The Ninth Circuit Court of Appeals held that in the absence of such safeguards, “[t]he risk that an infringement of an important constitutionally protected right might be justified on the basis of individual bias and disapproval of the protected conduct is too great. The very purpose of constitutional protection of individual liberties is to prevent such majoritarian or capricious coercion.” 43 5. C REDIT C HECKS AND “C ONSUMER ” R EPORTS – U SE IS L IMITED TO D ECISION I NVOLVING S PECIFIC J OB C ATEGORIES Effective January 1, 2012, Labor Code section 1024.5, will limit employers, other than certain financial institutions, in using consumer credit reports in connection with employment decisions unless the job in question falls under one of the following categories:

 a managerial position (defined here as an employee who qualifies for the executive exemption from overtime pay under Industrial Welfare Commission Order 4)

 a position in the State Department of Justice

 a sworn peace officer or law enforcement position

 a position for which the employer is legally required to consider credit history  a position that affords regular access (besides routine processing and solicitation of credit card information in retail establishments) to all the

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 19