Category: Right To Privacy

A Discussion on Background Checks—and LA’s Push to Use Them

Los Angeles County is discussing a proposal that would require ice cream truck vendors and operators of other businesses that cater to unsupervised children. The city is currently exploring regulations that would require fingerprinting and running a criminal history report for those who run businesses that serve children.

While the county already mandates background checks for a variety of businesses, (i.e. to use explosives or weapons on the job) this measure would allow vendors who sell products to unchaperoned children to be screened for criminal records that include molestation, sex offenses, pornography, or abuse.

So here’s the question: how legal are background checks in the employee-to-hire process? In California, employers have the power to conduct a background check themselves or to hire a third party investigating agency. The report obtained is called an “investigative consumer report” but does not include a credit report

An employer can only request your credit report in certain applicable positions. If a credit report can be obtained as per the position, then the employer must give notice that a credit check will be conducted and an explanation as to why the credit check was permitted/necessary.

An employee may request a copy of the report received. The employer must also disclose the website address or telephone number of the screening company used.  Additionally, an employee must also give authorization in writing before an employer can run the check through a third party. However, if the employer themselves conduct the check, an employee’s consent is not necessary, however, they still have the right to get a copy of the documents.

Limitations On Employers’ Access To Employees’ Social Media Accounts

I think it is safe to say, most people have social media accounts if they have access to the Internet.  But some may wonder what protections are in place to protect their personal photos, daily tweets, private posts and page likes from access by a current or prospective employer.

Wonder no more, the State of California has enacted laws to restrict an employer’s access to an employee’s social media accounts.  California Labor Code § 980 prevents an employer from requiring or requesting an employee or job applicant to (1) provide a username or password that is used to access social media sites, (2) log on to social media sites in front of the employer, and (3) disclose social media.

The only exception to the rule is the employer may require an employee to disclose social media reasonably believed to be relevant to an investigation related to complaints of employee misconduct or other violations of the law.  Outside of this limited exception, employers do not have the right to access an employee or job applicant’s social media accounts.

However, if an employer asks, and an employee refuses to comply with the request for social media, an employer may not fire, discipline, threaten to fire or discipline, or retaliate against an employee or job applicant.

Employers Cannot Disclose Employee’s Private Information

Melissa Ignat asked the court to rule that her right to privacy was violated when her employer, Yum! Brands, Inc. (parent company of Taco Bell, Pizza Hut, KFC and others) told her coworkers that she suffered from bipolar disorder. The California Court of Appeals, Fourth District, Division Three ruled in her favor and held that an individual’s right to privacy can be violated by oral communications.

Appellant Melissa Ignat asked the appeals court to review the lower court’s grant of summary judgment. In November 2011, the lower court had found that she could not pursue a privacy action on the grounds that the right of privacy can only be violated by written disclosure, not by word of mouth. Continue reading “Employers Cannot Disclose Employee’s Private Information”