Privacy Issues in the Workplace

employee which is to be given to any person other than the employer, but there is no objection to an [association of employers of which the employer is a member] obtaining and furnishing this information to the employer only. When the association is acting for the employer and the employer is a member of the association we do not believe there is a delivery to a third person within the prohibition of the statute but the information obtained should be available only to the employer. 112

In 1984, the Attorney General addressed the issue of fingerprinting again. Specifically, the Attorney General addressed the issue whether the Los Angeles Olympic Organizing Committee was precluded by Section 1051 from providing fingerprints to a law enforcement agency for purposes of screening applicants for employment and for positions requiring Olympic accreditation. The Attorney General stated:

Literally construed, Labor Code section 1051 would appear to prohibit ‘any person,’ including the employer, from taking a photograph and fingerprints ‘for the purpose of furnishing the same ... to any ... third person,’ including a law enforcement agency, where such photograph and fingerprints could be used to the detriment of the subject employee or applicant for employment. Such a detriment would consist of a denial, based on summary criminal history information acquired as a result of such photograph and fingerprints, of employment by the Committee, or of accreditation for employment related to the Olympic Games by a concessionaire or contractor.

Thus, the Attorney General concluded “that the taking of a photograph and fingerprints by the Committee of each applicant for submission to a law enforcement agency is precluded by Labor Code section 1051.” 113 On the one hand, the 1947 opinion (discussed above) appears to support the practice of fingerprinting job applicants for purposes of conducting a criminal background check. It recognizes that the original intent of the law was to prohibit black-listing individuals, not something which the proposed policy is aimed at doing. Moreover, Penal Code section 11105 suggests that there is legislative support for criminal background checks by public employers. On the other hand, the 1984 opinion appears to conflict somewhat with the earlier opinion and could be read by a court to mean that Labor Code section 1051 prohibits the practice of fingerprinting applicants for purposes of sending the fingerprints to the Department of Justice. Both of the above opinions relate to private employers and may be considered to have limited application to public employers. Moreover, the opinions would be considered by courts to be persuasive, but not binding authority.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 39