Privacy Issues in the Workplace

Additionally, Labor Code section 980 prohibits an employer from requiring or requesting that an employee or applicant do any of the following: (1) disclose his or her social media username or password; (2) access his or her personal social media in the presence of the employer; or (3) divulge any personal social media. 34 In short, an employer must not request or require employee personal media usernames or passwords, or seek access to an employee’s personal social media, as part of the application process or during employment. Labor Code section 980 does not affect an employer’s “existing rights and obligations” to request an employee to divulge personal social media when “reasonably believed” to be relevant to an investigation into employee misconduct. An employer is also not precluded from asking an employee for a username or password to access employer-issued electronic equipment. 2. O BTAIN A W AIVER A comprehensive waiver is essential to any successful background check. The waiver should inform the applicant of the categories of information that will be sought from former employers and require that the applicant release the prospective employer and former employers from liability pertaining to the background check. We recommend that the background examiner meet with the applicant to discuss the waiver and the background check process. The examiner should explain the waiver and the nature of the information that the agency will be seeking. This is an opportunity both to make sure that the applicant is fully informed about the terms of the waiver – reducing or eliminating the possibility of a subsequent successful legal challenge to the waiver – and to give the applicant the opportunity to disclose information that former employers might reveal. This enables the applicant to explain what he or she expects former employers to say, and to give the applicant’s perspective on those issues in advance. 3. C ONFIDENTIALITY OF S OURCES P ROVIDING R EFERENCES Former employers providing references or other subjective information about job candidates may expect or request that the information they provide will be kept confidential. If an individual or agency requests confidentiality, and the prospective employer agrees to provide it, the individual giving the reference may have a privacy right in the information and opinions that he or she shares with the prospective employer, and the employer may be obligated to keep the information confidential. 35 One court blocked an employee’s effort to obtain information about confidential references provided by third parties. 36 Employers should adopt a filing policy that, under appropriate circumstances, protects the privacy rights of the third parties who give confidential references. These documents should be filed somewhere other than in the personnel file. Placing references in a manila envelope in a personnel file will not guarantee privacy. The better practice is to file confidential references in a different location.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 17