Privacy Before, During and After Employment Flashcards
3-5 questions
What kind of professions require background screening by law?
- anyone who worked with elderly, children or disabled
- state and federal governmental jobs
- emergency medical service personnel
- firefighters
What kind of discrimination does Title VII of the Civil Rights Act bar?
bars discrimination in employment due to race, color, religion, sex (extends to sexual orientation and gender identity), and national origin
What are notable laws that limit background screening?
- Title VII of Civil Rights Act of 1974
- Equal Pay Act of 1963
- Age Discrimination in Employment Act of 1967 (over 40)
- Pregnancy Discrimination Act of 1978
- Americans with Disabilities Act of 1978
- Genetic Information Nondiscrimination Act of 2008
- Bankruptcy Act provisions 11 U.S.C. Section 525(b)
What is the risk for employers when it comes to background screening?
risk for employers is that their interview questions and other background screening activities may provide evidence of discrimination
Define:
What are the key obligations of the Americans with Disabilities Act?
- forbids employers with 15 or more employees from discriminating against a qualified individual with a disability because of the disability of such individual
- requires employer to provide reasonable accommodations to qualified individuals who are employees or applicants for employment, unless to do so would cause undue hardship
When are medical examinations allowed under the ADA?
- allowed pre-employment offer if job-related and consistent with business necessity
- may be required after the offer of employment has been made and may condition the offer of employment on results of exam
only if (1) all entering employees are subjected to such an exam regardless of disability, (2) confidentiality rules are followed for the results of the examination and (3) the results are used only in accordance with the statutory prohibitions against discrimination on the basis of disability
Can employers ask an applicant if they need reasonable accomodations under the ADA?
can’t ask if applicant needs reasonable accommodation for job except if already knows applicant has a disability
What is the FCRA restriction on background checks for employment?
FCRA prohibits obtaining a consumer report (which includes background check) or an investigative consumer report unless a “permissible purpose” exists, which can include “employment purposes” which include:
1. preemployment screenings for the purpose of evaluating the candidate for employment and
2. determining if an existing employee qualifies for promotion, reassignment, or retention
To obtain a consumer report under the FCRA, an employer must:
- provide written notice to the applicant that it is obtaining a consumer report for employment purposes and indicate if an investigative consumer report will be obtained
- obtain written consent from the applicant
- obtain data only from a CRA
- certify to the CRA that employer has a permissible purpose and has obtained consent from employee
- before taking adverse action, provide a pre-adverse-action notice to the applicant with a copy of the consumer report, in order to give the applicant an opportunity to dispute the report
- after taking adverse action, provide adverse action notice
Define:
California Investigative Consumer Reporting Agencies Act (ICRAA)
- employers must notify the applicants and employees of their intention to obtain and use a consumer report and then obtain applicant or employee’s written authorization prior to requesting the report
- if employers wish to take adverse employment action, must provide employee with a copy of the report
Define:
Fair Chance to Compete on Jobs Act (FCA)
for many jobs, restricts federal agencies as well as federal contractors from requesting information related to an applicant’s criminal history until a conditional offer of employment has been made to the applicant
Define:
“ban the box laws”
~⅔ of states have enacted laws to remove the checkbox on job applications that ask an applicant if they have a criminal history
Employee Polygraph Protection Act of 1988 (EPPA)
- employers prohibited from using “lie detectors” on incumbent workers or to screen applicants
- prohibits employers from taking adverse action against an employee who refuses to take a test
What are the exceptions under the EPPA?
- certain occupations such as government employees, security services, defense contractors, national security functions, etc.
- test in connection with “ongoing investigation involving economic loss or injury to employer’s business”
1) must be reasonable suspicion to test an employee
2) employee can’t be discharged because of results of polygraph or for refusing to submit polygraph unless additional supporting evidence also exists
What is the federal approach to drug testing?
no federal privacy statute that directly governs employer testing of employees for substances such as illegal drugs, alcohol or tobacco
- alcoholism treated as a disability
When can drug testing be used?
- preemployment: generally allowed if not designed to identify legal use of drugs or addiction to illegal drugs
- reasonable suspicion: generally allowed as a condition of continued employment if there is “reasonable suspicion” of drug or alcohol use based on specific facts and rational inferences from these facts
- routine testing: generally allowed if employees are notified at time of hire
- post-accident testing: generally allowed to test as condition of continued employment if “reasonable suspicion” that the employee involved in the accident was under the influence of drugs or alcohol
- random testing: sometimes required by law
What is federal policy on intercepting workplace commnications?
Wiretap Act and the Electronic Communications Privacy Act (ECPA) generally strict in prohibiting interception of wire communications, such as telephone calls; oral communications (hidden bugs); and electronic communications
What is federal policy on accessing stored communications of employees?
SCA creates general prohibition against the unauthorized, alteration or blocking of electronic communications while in an electronic storage facility that provides electronic communications services
generally, employers can look at workers’ electronic communications if employer’s reason for doing so is reasonable and work-related
What is legal policy on accessing employees’ social media accounts?
½ of states have laws prohibiting employers for asking employees or applicants for access to their social media accounts
What is legal policy on accessing photos and video surveillance of employees?
state states and common law can create limits on the use of photography or video cameras with no sound recordings
What is legal policy on postal mail monitoring?
federal law generally prohibits interference with mail delivery
- mail is considered “delivered” when it reaches business
What is rule on monitoring location of employees?
employees interested in monitoring location of company vehicles with GPS may generally do so without legal hindrance, provided that monitoring occurs for business purposes during work hours and employees have been informed beforehand
Define:
Vail Letter
if employer hired an outside organization such as a PI or background research firm to conduct investigations into employee misconduct, the outside employee institution constituted a CRA under the FCRA and any report furnished to employer by outside organization was an “investigative consumer report” and so employer must provide notice to suspected employee and obtain consent, destroying undercover aspect of investigations
no longer applicable
What was the response to the Vail Letter?
FACTA amended the FCRA → changed definition of consumer report to exclude communications relating to employee investigations if three requirements met:
1. communication made to an employer in connection with the investigation of: (1) suspected misconduct related to employment, or (2) compliance with federal, state or local laws and/or regulations, the rules of a self-regulatory org, or any preexisting written employment policies
2. communication not made for purpose of investigating a consumer’s creditworthiness, credit standing or credit capacity and does not include info pertaining to those factors
3. communication is not provided to any person except: (1) the employer or agent of the employer; (2) a federal or state officer, agency, or department, or an officer, agency, or department of a unit of general local government; (3) a self-regulating org with authority over the activities of the employer or employee; (4) as otherwise required by law; or (5) pursuant to 15 U.S.C. Section 1681f, which addresses disclosure to government agencies
Define
qualified privilege for employers
common law provides a “qualified privilege” for employers to report their experience with and impressions of the employee, to help in defense against defamation suits
