Privacy Issues in the Workplace

“We agree, therefore, that to the extent the file contains matters obtained with the understanding implicit or explicit that such matters could be kept confidential, the Court was correct in denying disclosure of those matters. However, we cannot agree that as a matter of law, without a factual determination, all matters contained within Appellant’s applicant investigation file are privileged.” 41

If a peace officer or applicant demands to see his/her background investigation, the department should seek legal counsel’s input regarding its obligation to turn over the materials.

4. P OLICY FOR R ESPONDING TO R EFERENCE C HECKS Privacy rights are an issue, not only for employers who are conducting reference checks, but also employers who are responding to reference checks. All employers need a background information response policy. Many employers have a policy to provide no information to background investigators, while others permit varying levels of cooperation. It is understandable that many employers choose not to provide information for fear of legal defense costs or liability. But, those employers must recognize that there will be occasions, such as requests from police departments, when the law requires them to provide detailed information about former or current employees.  Request that references be received and maintained in confidence, and only provide information after the prospective employer agrees to provide confidentiality.  Pick one of three options and use that option for each and every response. (1) Provide a full disclosure revealing all relevant facts about the applicant’s background. (2) Verify the former employee’s dates of employment, position and other basic information. (3) Give no information at all.  Before preparing to give any response, make sure that the agency has received a written waiver signed by the applicant.  Have a centralized procedure for responding to requests. For example, requests for written responses might be distributed to the former employees’ supervisors, but all of them should be reviewed by the human resources director, personnel officer, or some other high-level manager. The review official should make sure that the reference is supported by documentation, is factual, and is consistent with other reference responses.  Provide information in writing. While some agencies choose to provide verbal responses, written responses are preferable because they create a clear record of the information provided and help prevent impromptu, emotional outbursts from former employees. An employer background response policy should include the following elements:

 Apply the policy equally to all current and former employees.

 Maintain a confidential response process. The only individuals who should discuss and review the agency’s reference are those who draft it.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 18