Privacy Issues in the Workplace

4. M ANDATORY R ESPONSE TO P OLICE D EPARTMENT B ACKGROUND I NVESTIGATION As discussed above, Government Code section 1031 requires law enforcement agencies to investigate whether peace officer applicants are fit to be peace officers. Section 1031.1 in turn requires current and former employers to disclose employment information to public safety departments conducting background checks. Employers must respond to requests for information if all of the following criteria are met:

 The candidate is not currently employed as a peace officer.



The request is made in writing.

 The request includes a notarized authorization from the candidate releasing the employer from liability.

Do not forget the notarization requirement as this might invalidate the release. A peace officer or another authorized representative of the law enforcement agency must present the request and release from liability to the employer. If these requirements listed above are met, the employer must provide any written information in its files about the applicant’s employment and any other records relevant to peace officer performance. An employer is not required to provide a verbal reference, create any documents, or provide information that is protected from disclosure by law, i.e. employers should not release confidential references previously provided by third parties. The Legislature has afforded former employers protection from liability for responses to police background investigations. Government Code section 1031.1 (b) provides, “in the absence of fraud or malice, no employer shall be subject to any liability for any relevant cause of action by virtue of releasing employment information required pursuant to this section.” 5. D UTY TO M AINTAIN B ACKGROUND C HECK I NFORMATION The EEOC requires educational institutions and state and local governments to preserve background information (application and other records) for two years after the record or an adverse action was taken, whichever is later, even if the person was not hired. 130 If a discrimination charge is filed, the records must be preserved until the case is concluded. In addition, when disposing of the records, a secure method is required.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 45