Privacy Issues in the Workplace

employers should thus provide the examiner with a standard list of questions and instruct the examiner not to deviate from the identified line of questioning. In any polygraph examination, employers should only ask questions related to the job duties of the specific position. The court in the Long Beach case, for example, found that the following questions impermissibly violated the examinee’s privacy rights: 1) Have you had any major operations within the past ten years?; 2) Have you had sex with men or animals?; 3) How often do you masturbate?; 4) Do you cheat on your wife?; 5) Have you ever had an automobile accident while you were driving?; 6) Have you written any bad checks in the past three years?; 7) Have you suffered a nervous breakdown within the past ten years? These questions were found to be entirely unrelated to the person’s employment duties, and thus beyond the permissible scope of questioning. 2. P UBLIC S AFETY O FFICERS AND F IREFIGHTERS Under Government Code section 3307, the POBR gives a peace officer the absolute right to decline to take a polygraph examination even when the police officer is under investigation for suspected criminal activity. 115 Admissions made as a result of a threatened polygraph examination will be excluded by a court in considering the merits of resulting disciplinary action. 116 Even if a police officer were to submit to a voluntary polygraph examination, the results are probably not admissible in a subsequent administrative hearing .117 However, police departments may require polygraph examinations for officers who voluntarily seek to be promoted or transferred into specialized divisions where work is unusually sensitive and requires the highest level of integrity; this requirement has been held to not invade police officers’ right to privacy .118 The FBOR prohibits an agency from compelling a firefighter to take a lie detector test. 119 Additionally, disciplinary action cannot be imposed against a firefighter for refusing to submit to a lie detector test. 120 Similarly, no comment may be entered into an investigator’s notes or anywhere else that the firefighter refused to take, or did not take, a lie detector test. 121 Finally, there can be no testimony or evidence to the effect that the firefighter refused to take, or was subjected to, a lie detector test at a subsequent hearing, trial, judicial proceeding, or administrative proceeding. 122 However, if a firefighter voluntarily takes a lie detector test, the agency may be able to use evidence of who took the lie detector test at an administrative hearing. F. R ESPONDING TO R EFERENCE C HECKS While conducting a thorough background investigation is an important human resources function, it is equally important to provide information about current or former employees without creating legal liability for the agency. This section discusses employers’ obligations to provide information, potential legal pitfalls associated with doing so, and legal protections which are available.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 40