Privacy Issues in the Workplace

held that plaintiff’s proposed solution was inadequate for three reasons: (1) since the comments are in the interviewers’ own handwriting, plaintiffs may recognize the writing; (2) the possibility that the wording of some of the comments would in and of itself provide a clue to the drafter’s identity; and lastly, (3) some interviewers made their comments on the examination forms themselves presumably in reliance on the promised confidentiality. 311

Furthermore, the California Supreme Court has held that Government Code section 3303, subdivision (f), of the Public Safety Officers Procedural Bill of Rights Act does not grant a peace officer, subject to an internal affairs investigation, a right to investigative reports and complaints prior to being interrogated. 312

2. C HECKLIST : E MPLOYEE P ERSONNEL F ILE I NSPECTION P ROCEDURE

Employers may want to consider the following checklist in implementing an employee personnel file inspection procedure:

 Require the employee to provide a written request for access to the file.

 Review the file to determine whether any of the statutory exemptions apply (e.g., letters of reference regarding county employee, criminal investigations). If so, remove such documents from the file.  Determine whether any of the documents in the file are from individuals who have been given an assurance of confidentiality. If so, remove these documents from the file.

 Enter a notation indicating date and time of employee’s inspection.

Some states expressly require employees to submit a written form requesting access to their personnel files. The purpose of such a requirement is to identify the requesting individual and to avoid disclosure to ineligible individuals. Even though California does not expressly provide for this requirement, employers should maintain records of requests to inspect personnel files together with detailed information concerning the inspection. For example, the records custodian should record the time the inspection occurred and identify which documents were reviewed and copied. The custodian may also wish to obtain from the requesting employee a signed statement that the inspection occurred. Detailed records concerning the inspection of personnel files will provide evidence of an employer’s compliance with the access statutes. 3. C ONTROLLING I NTERNAL A CCESS TO P ERSONNEL F ILES Employers have a duty to see that information contained in an employee’s personnel file or supervisor’s desk folder is not disclosed to others in the agency in ways that are unfair to the employee. For example:

 Personnel and payroll records should only be available internally to authorized users on a need-to-know basis.  Security records or records relating to security investigations should be maintained apart from other records, but access need not be given to the

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 97