Privacy Issues in the Workplace

because of a criminal conviction discovered through research, and give them a reasonable opportunity to demonstrate that the exclusion should not be applied due to their particular circumstances. The employer must then consider that information, and determine whether the policy as applied to the individual employee or applicant is job-related and consistent with business necessity.

Finally, even if an employer demonstrates that its policy or practice of considering conviction history is job-related and consistent with business necessity, it may still be liable if an employee or applicant can demonstrate that there is a less discriminatory policy or practice that serves the employer’s goals as effectively as the challenged policy or practice, such as a more narrowly tailored list of convictions or another form of inquiry that evaluates job qualification or risk as accurately without significantly increasing the cost or burden on the employer.

D. F INGERPRINT R ECORDS

Labor Code section 1051 may limit the use of fingerprints by prospective employers. It provides:

Except as provided in Section 1057, any person or agent or officer thereof, who requires, as a condition precedent to securing or retaining employment, that an employee or applicant for employment be photographed or fingerprinted by any person who desires his or her photograph or fingerprints for the purpose of furnishing the same or information concerning the same or concerning the employee or applicant for employment to any other employer or third person, and these photographs and fingerprints could be used to the detriment of the employee or applicant for employment is guilty of a misdemeanor.

Labor Code section 1051 was passed in 1937 and was originally part of what was known as the Anti-Black Listing Law. The legislation was generally aimed at prohibiting an employer from attempting to prevent a former employee from obtaining employment with any other person by misrepresentations concerning the former employee. 111 There are no reported cases which have interpreted Labor Code section 1051, and there are only two Attorney General opinions on the subject.

In 1947, the Attorney General addressed Section 1051 with respect to compulsory fingerprinting requirements by employers. The Attorney General reached the conclusion that:

 Fingerprints may be taken by an employer and retained in his/her files for identification and comparison purposes in the event that a crime has been committed on the premises of or against the employer, and  Fingerprints so taken may not be delivered to an association or any third party for the purpose of securing information as to the crime records of an

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 38