Privacy Issues in the Workplace

Both of the above opinions relate to private employers and may be considered to have limited application to public employers. Moreover, the opinions would be considered by courts to be persuasive, but not binding authority. The Department of Justice (DOJ) operates an “Applicant Live Scan” program permitting the submission of electronically scanned fingerprints for criminal background checks. The DOJ notes that this service is provided for, among other purposes, employment background checks. This implies that use of fingerprints for DOJ criminal records checks is lawful. However, any agency using Live Scan must comply with DOJ requirements, which are many. DOJ audits employers to ensure that they use and maintain criminal information correctly. 1. E MPLOYEES IN G ENERAL Labor Code section 432.2, prohibiting the use of polygraph examinations, only applies to private employers. But, Government Code section 3307 protects public safety officers from compelled polygraph examinations during the course of employment. Similarly, Government Code section 3257 provides that a firefighter cannot be compelled to submit to a lie detector test. While there is no existing state statutory prohibition which applies to public sector employees in general, the California Supreme Court held in Long Beach City Employee Assn. v. City of Long Beach , 113 that non-safety public employees could not be required to submit to polygraph examinations. The Court in the Long Beach case stated that the mind is a “quintessential zone of human privacy” which a polygraph examination is specifically designed to overcome by ‘compelling communications of thoughts, sentiment, and emotions’ which the examinee may have chosen not to communicate.” The Court further expressed concern that repressed beliefs, guilt feelings and fantasized events, not just actual events, can impact the polygraph examination results. The court noted that pre-employment polygraph testing, which has frequently been used as a fishing expedition, is inherently unreliable, and often involves “shockingly intrusive questions.” The Court did not reach the issue of whether applicants for public sector employment could be required to take a polygraph test. Part of the rationale of the Long Beach decision, however, was that there was no reason to treat public sector employees differently with respect to polygraph examinations than private sector employees, who are protected by statute from such examinations. Thus, polygraph exams for non-sworn position applicants are not recommended. The examinations should only be given where the agency can show a compelling reason for requiring the test. Additionally, if polygraph examinations are given to applicants (as they typically are to peace officer applicants), the questions must be narrowly tailored to serve the legitimate interests of the agency. In Thorne v. City of El Segundo , 114 the defendant city had no standards limiting the scope and areas for questioning during a police applicant polygraph examination. As a result, the examiner intruded into off-duty non-job-related sexual activities. The court deemed that line of questioning so invasive that it could not be justified under any level of scrutiny. To avoid this situation, E. P OLYGRAPH E XAMINATIONS

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 39