Privacy Issues in the Workplace

McQuirk’s prospective employer was a ministerial act, not discretionary. The Court concluded that Section 820.2 confers immunity only with respect to basic policy decisions and found that the actions of Donnelley were on an operational level and not a planning/policy level. Similarly, the County would not be immune from liability. The Court noted, however, that Civil Code section 47(c) provides a qualified privilege for employers when giving references, and limited its holding to prevent employers from prospectively contracting by waiver for more than the qualified privilege granted them under California law.

3. S TATUTORY C LAIMS State and Federal anti-discrimination laws prevent employers from taking adverse action - such as giving false job references - to individuals on the basis of a protected status. The law protects individuals on the basis of race, national origin, color, sex, sexual orientation, religion, disability, medical condition and numerous forms of protected activity. Examples of protected activity include seeking Workers’ Compensation benefits, filing a discrimination or harassment complaint, and participating as a party or witness in a discrimination lawsuit. Employers that give false job references because the current or former employee belongs to a protected class can be subject to significant liability under State and Federal anti-discrimination laws. As with tort claims, an employer sued for discrimination or retaliation under these laws must be able to prove that it gave an accurate reference. Documentation is therefore crucial. But proof of equal treatment is also important in discrimination cases. If an employer has a history of never providing job references, and it then provides an accurate, negative reference about a former employee with a protected status, a jury or court might find that the employer gave the reference because of the plaintiff’s race, gender or other protected status. The employer’s history of providing no reference could be enough to convince the jury or court that the employer would not have given any reference if the employee did not have the protected status. This could result in judgment against the agency. 4. M ANDATORY R ESPONSE TO P OLICE D EPARTMENT B ACKGROUND I NVESTIGATION As discussed above, Government Code section 1031 requires law enforcement agencies to investigate whether peace officer applicants are fit to be peace officers. Section 1031.1 in turn requires current and former employers to disclose employment information to public safety departments conducting background checks. Employers must respond to requests for information if all of the following criteria are met:

 The candidate is not currently employed as a peace officer.



The request is made in writing.

 The request includes a notarized authorization from the candidate releasing the employer from liability.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 43