Privacy Issues in the Workplace

An employer background response policy should include the following elements:

 Request that references be received and maintained in confidence, and only provide information after the prospective employer agrees to provide confidentiality.  Pick one of three options and use that option for each and every response. (1) Provide a full disclosure revealing all relevant facts about the applicant’s background. (2) Verify the former employee’s dates of employment, position and other basic information. (3) Give no information at all.  Before preparing to give any response, make sure that the agency has received a written waiver signed by the applicant.  Have a centralized procedure for responding to requests. For example, requests for written responses might be distributed to the former employees’ supervisors, but all of them should be reviewed by the human resources director, personnel officer, or some other high-level manager. The review official should make sure that the reference is supported by documentation, is factual, and is consistent with other reference responses.  Provide information in writing. While some agencies choose to provide verbal responses, written responses are preferable because they create a clear record of the information provided and help prevent impromptu, emotional outbursts from former employees. Following a comprehensive policy such as this will help the agency avoid accusations of favoritism, prevent supervisors from drafting emotional, inaccurate or unsupportable references, and preserve the agency’s legal defenses. If an employer does intend to submit fingerprints to the State to obtain a criminal background check, it should use the Department of Justice’s Live Scan program. This program enables the Department of Justice (“DOJ”) to receive electronically scanned fingerprints and perform records checks. However, the DOJ imposes strict confidentiality requirements and warns employers not to release the results of the criminal background checks. The Ninth Circuit held that no invasion of privacy tort claim was stated where an employer deceived a credit bureau as to its purpose for requesting two credit reports about a job applicant who was bankrupt. The employer’s and credit bureau’s methods were not unreasonably intrusive, the information was used to make a hiring decision, and it was not published or disseminated. 43 The process by which an agency requests and obtains credit information from job applicants must be structured with standards, guidelines, definitions and limitations precisely indicating the job-related reason for requesting the information.  Apply the policy equally to all current and former employees.  Maintain a confidential response process. The only individuals who should discuss and review the agency’s reference are those who draft it.  Maintain copies of the waiver, written questions, and the agency’s responses.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 19