Privacy Issues in the Workplace

While it is true that if an employer uses a consumer reporting agency to conduct a background check, there is an obligation to disclose the report, both federal law 37 and state law 38 permit consumer reporting agencies to keep source information confidential. Although there are no express provisions permitting employers to keep such information confidential, it would appear to make little sense to allow a consumer reporting agency to keep the information confidential and to prohibit an employer from doing the same. Furthermore, it is well established by the courts that confidential references may be withheld from employees. 39 Thus, we interpret both laws to permit source information to be kept confidential. Employees do have a right to inspect their personnel files, but their access to information about third parties who have provided references is restricted. For additional legal discussion on this, refer to Section 5 of this workbook entitled “Personnel Records and Files.” Non-employee applicants for peace officer positions have means at their disposal to examine employment-related information that may be possessed by an employer. For example, the case of Johnson v. Winter , 40 addresses the issue of a non-employee applicant who sought background information compiled by the Santa Clara County Sheriff’s Department. In general, the basis for the applicant’s demand for disclosure was the California Public Records Act. 41 However, the court specifically held that:

“We agree, therefore, that to the extent the file contains matters obtained with the understanding implicit or explicit that such matters could be kept confidential, the Court was correct in denying disclosure of those matters. However, we cannot agree that as a matter of law, without a factual determination, all matters contained within Appellant’s applicant investigation file are privileged.” 42

If a peace officer or applicant demands to see his/her background investigation, the department should seek legal counsel’s input regarding its obligation to turn over the materials.

4. P OLICY FOR R ESPONDING TO R EFERENCE C HECKS Privacy rights are an issue, not only for employers who are conducting reference checks, but also employers who are responding to reference checks. All employers need a background information response policy. Many employers have a policy to provide no information to background investigators, while others permit varying levels of cooperation. It is understandable that many employers choose not to provide information for fear of legal defense costs or liability. But, those employers must recognize that there will be occasions, such as requests from police departments, when the law requires them to provide detailed information about former or current employees.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 18