Privacy Issues in the Workplace

H IRING I NQUIRIES AND B ACKGROUND C HECKS

S ECTION 2

An applicant or employee’s right to privacy is weighed against an employer’s interest in disclosure. 21 Employers should review their hiring (including promotional) and background check processes to make sure they do not violate applicants’ privacy rights. More specifically, employers should verify that inquiries are not made which cannot be justified by some legitimate reason. Hiring and background inquiries should be tailored to determine only if the applicant can perform the essential duties of the job and will otherwise be a quality employee.

 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

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 13