Privacy Issues in the Workplace

 Accounts placed for collection or charged to profit and loss that pre-date the report by more than seven years.  Records of arrest, indictment, information, misdemeanor complaint, or conviction of a crime that, from the date of disposition, release, or parole, pre-dates the report by more than seven years. These items of information shall no longer be reported if at any time it is learned that, in the case of a conviction, a full pardon has been granted or, in the case of an arrest, indictment, information, or misdemeanor complaint, a conviction did not result; except that records of arrest, indictment, information, or misdemeanor complaints may be reported pending pronouncement of judgment on the particular subject matter of those records. Note that the above regulations do not apply if the report is to be used by an employer who is explicitly required by a governmental regulatory agency to check for such records. However, this provision is questionable given that no parallel provision exists in the FCRA, and federal law preempts state law. In addition, Civil Code section 1786.40, provides that an employer that decides not to hire an applicant based upon a report shall notify the applicant of the decision and the name and address of the reporting agency. The Act also imposes restrictions on the information that may be included in a report which is collected from friends, neighbors, relatives, and acquaintances:  Any other adverse information that pre-dates the report by more than seven years. 79

An investigative consumer reporting agency shall not prepare or furnish an investigative consumer report on a consumer that contains information that is adverse to the interest of the consumer and that is obtained through a personal interview with a neighbor, friend, or associate of the consumer or with another person with whom the consumer is acquainted, or who has knowledge of the item of information, unless either: (1) the investigative consumer reporting agency has followed reasonable procedures to obtain confirmation of the information from an additional source that has independent and direct knowledge of the information, or (2) the person interviewed is the best possible source of the information. 80

iii. Employer Obligations When Reference Check is Conducted in-House While the most stringent requirements of the ICRA apply to employers who utilize the services of consumer reporting agencies, there are still some disclosure requirements placed upon employers that do not. Specifically, the ICRA provides:  Unless the applicant has elected not to receive them, 81 an employer must provide a copy of any public record (records documenting an arrest, indictment, conviction, civil judicial action, tax lien, or outstanding judgment) that is obtained for employment purposes within seven days after receipt of the information, whether the information is received in a written or oral form. 82

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 26