Privacy Issues in the Workplace

 Legal Snapshot: Hiring Inquiries & Background Checks

 Constitutional Right of Privacy, Cal. Const., art. I, § 1  Fair Employment and Housing Act (FEHA), Cal. Gov. Code §§ 12900, et. seq.  American with Disabilities Act (ADA), 42 USC §§ 12101, et. seq.  Public Safety Officers’ Procedural Bill of Rights Act (POBR), Cal. Gov. Code §§ 3300, et seq .  Firefighters Procedural Bill of Rights Act (FOBR), Cal. Gov. Code §§ 3250, et seq .

Applicable laws:

 Various other federal and California statutes

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Common law torts

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Applicants and employees

Who and what is protected?:

 Personal information that is not job-related

 Ask applicants or employees for personal information that is not job-related  Investigate or seek personal information about applicants or employees that is not job-related

Generally, employers must NOT:

 Applicants’ and employees’ interest in

Applicable balancing test:

keeping personal information private versus employer’s legitimate interest in determining qualifications to perform the job in question

A. H IRING I NTERVIEWS , Q UESTIONNAIRES AND T ESTS All hiring questions must relate to the applicant’s ability to perform the job. Questions about religious beliefs, sexual preferences or habits, sexual orientation or gender identity, financial condition, family relationships, and other such private information may not only violate anti- discrimination laws, but may also violate constitutionally protected privacy rights. The best way to ensure that screening questions are job-related is to evaluate the job position in question. Once the agency is fully aware of the duties and requirements of a job, the agency is in a better position to tailor its interview questions to those that test an applicant’s ability to perform that job.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 13