Privacy Issues in the Workplace

In addition, Civil Code section 1786.40, provides that an employer that decides not to hire an applicant based upon a report shall notify the applicant of the decision and the name and address of the reporting agency. The Act also imposes restrictions on the information that may be included in a report which is collected from friends, neighbors, relatives, and acquaintances:

An investigative consumer reporting agency shall not prepare or furnish an investigative consumer report on a consumer that contains information that is adverse to the interest of the consumer and that is obtained through a personal interview with a neighbor, friend, or associate of the consumer or with another person with whom the consumer is acquainted, or who has knowledge of the item of information, unless either: (1) the investigative consumer reporting agency has followed reasonable procedures to obtain confirmation of the information from an additional source that has independent and direct knowledge of the information, or (2) the person interviewed is the best possible source of the information. 81

iii. Employer Obligations When Reference Check is Conducted in-House While the most stringent requirements of the ICRA apply to employers who utilize the services of consumer reporting agencies, there are still some disclosure requirements placed upon employers that do not. Specifically, the ICRA provides:  Unless the applicant has elected not to receive them, 82 an employer must provide a copy of any public record (records documenting an arrest, indictment, conviction, civil judicial action, tax lien, or outstanding judgment) that is obtained for employment purposes within seven days after receipt of the information, whether the information is received in a written or oral form. 83  Even if the applicant has elected not to receive any information, if an employer takes any adverse action (a denial of employment or any decision made for an employment purpose that adversely affects any current or prospective employee) as a result of receiving such public records, the employer shall provide to the consumer a copy of the public record. 84  The election to receive or not to receive any public records that may be obtained is to be made on a form provided by the employer and described as following: “any person shall provide on any job-application form, or any other written form, a box that, if checked by the consumer, permits the consumer to waive his or her right to receive a copy of any public record obtained pursuant to this selection.” 85

Thus, the best option for avoiding the requirements of the Act, as well as those imposed by the FCRA, is to conduct reference checks in-house.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 27