Privacy Issues in the Workplace

The Ninth Circuit Court of Appeals held that in the absence of such safeguards, “[t]he risk that an infringement of an important constitutionally protected right might be justified on the basis of individual bias and disapproval of the protected conduct is too great. The very purpose of constitutional protection of individual liberties is to prevent such majoritarian or capricious coercion.” 44 5. C REDIT C HECKS AND “C ONSUMER ” R EPORTS – U SE IS L IMITED TO D ECISION I NVOLVING S PECIFIC J OB C ATEGORIES Labor Code section 1024.5 limits employers, other than certain financial institutions, in using consumer credit reports in connection with employment decisions unless the job in question falls under one of the following categories:

 a managerial position (defined here as an employee who qualifies for the executive exemption from overtime pay under Industrial Welfare Commission Order 4)

 a position in the State Department of Justice

 a sworn peace officer or law enforcement position

 a position for which the employer is legally required to consider credit history  a position that affords regular access (besides routine processing and solicitation of credit card information in retail establishments) to all the following information of others: bank or credit card account information, Social Security number, date of birth  a position in which the person is a named signatory on the bank or credit card information of the employer, is authorized to transfer funds on behalf of the employer, or is authorized to enter financial contracts on behalf of the employer

 a position that affords access to proprietary or confidential information

 a position that involves regular access to cash totaling more than $10,000 of the employer, a customer or client during the workday.

Civil Code section 1785.20.5 requires an employer who requests a credit report from an applicant or employee to notify that individual which of the specific exceptions applies to him or her.

Additionally, employers should continue to comply with restrictions imposed by the Fair Credit Reporting Act’s 45 and the Investigative Consumer Credit Reporting Agencies Act’s 46 upon the acquisition and use of credit history information about applicants and employees:

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 20