Privacy Issues in the Workplace

Do not forget the notarization requirement as this might invalidate the release. A peace officer or another authorized representative of the law enforcement agency must present the request and release from liability to the employer. If these requirements listed above are met, the employer must provide any written information in its files about the applicant’s employment and any other records relevant to peace officer performance. An employer is not required to provide a verbal reference, create any documents, or provide information that is protected from disclosure by law, i.e. employers should not release confidential references previously provided by third parties. The Legislature has afforded former employers protection from liability for responses to police background investigations. Government Code section 1031.1 (b) provides, “in the absence of fraud or malice, no employer shall be subject to any liability for any relevant cause of action by virtue of releasing employment information required pursuant to this section.” 5. D UTY TO M AINTAIN B ACKGROUND C HECK I NFORMATION The EEOC requires educational institutions and state and local governments to preserve background information (application and other records) for two years after the record or an adverse action was taken, whichever is later, even if the person was not hired. 129 If a discrimination charge is filed, the records must be preserved until the case is concluded. In addition, when disposing of the records, a secure method is required. Effective January 1, 2018, the Immigration Worker Protection Act (AB 450) prohibits a public or private employer, or a person acting on behalf of the employer, from re-verifying the employment eligibility of a current employee at a time or in a manner not required by Section 1324a(b) of Title 8 of the United States Code, unless otherwise required by federal law. 130 An employer who violates this provision is subject to a civil penalty of up to ten thousand dollars, except that the act will not also form the basis for liability or penalty for violating Labor Code section 1019.1. 131 This prohibition concerning re-verification is not meant to be interpreted, construed, or applied to restrict or limit an employer’s compliance with a memorandum of understanding governing the use of the federal E-Verify system. 132 (See also Worksite Inspection of Personnel Files by Immigration Enforcement Agent, infra .) 6. R E -V ERIFYING E MPLOYMENT E LIGIBILITY

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