Privacy Before, During and After Employment

Question 1

What kind of professions require background screening by law?

Answer 1

• anyone who worked with elderly, children or disabled
• state and federal governmental jobs
• emergency medical service personnel
• firefighters

Question 2

What kind of discrimination does Title VII of the Civil Rights Act bar?

Answer 2

bars discrimination in employment due to race, color, religion, sex (extends to sexual orientation and gender identity), and national origin

Question 3

What are notable laws that limit background screening?

Answer 3

• 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)

Question 4

What is the risk for employers when it comes to background screening?

Answer 4

risk for employers is that their interview questions and other background screening activities may provide evidence of discrimination

Question 5

Define:

What are the key obligations of the Americans with Disabilities Act?

Answer 5

• 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

Question 6

When are medical examinations allowed under the ADA?

Answer 6

• 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

Question 7

Can employers ask an applicant if they need reasonable accomodations under the ADA?

Answer 7

can’t ask if applicant needs reasonable accommodation for job except if already knows applicant has a disability

Question 8

What is the FCRA restriction on background checks for employment?

Answer 8

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

Question 9

To obtain a consumer report under the FCRA, an employer must:

Answer 9

• 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

Question 10

Define:

California Investigative Consumer Reporting Agencies Act (ICRAA)

Answer 10

• 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

Question 11

Define:

Fair Chance to Compete on Jobs Act (FCA)

Answer 11

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

Question 12

Define:

“ban the box laws”

Answer 12

~⅔ of states have enacted laws to remove the checkbox on job applications that ask an applicant if they have a criminal history

Question 13

Employee Polygraph Protection Act of 1988 (EPPA)

Answer 13

• 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

Question 14

What are the exceptions under the EPPA?

Answer 14

• 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

Question 15

What is the federal approach to drug testing?

Answer 15

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

Question 16

When can drug testing be used?

Answer 16

• 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

Question 17

What is federal policy on intercepting workplace commnications?

Answer 17

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

Question 18

What is federal policy on accessing stored communications of employees?

Answer 18

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

Question 19

What is legal policy on accessing employees’ social media accounts?

Answer 19

½ of states have laws prohibiting employers for asking employees or applicants for access to their social media accounts

Question 20

What is legal policy on accessing photos and video surveillance of employees?

Answer 20

state states and common law can create limits on the use of photography or video cameras with no sound recordings

Question 21

What is legal policy on postal mail monitoring?

Answer 21

federal law generally prohibits interference with mail delivery

• mail is considered “delivered” when it reaches business

Question 22

What is rule on monitoring location of employees?

Answer 22

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

Question 23

Define:

Vail Letter

Answer 23

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

Question 24

What was the response to the Vail Letter?

Answer 24

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

Question 25

Define

qualified privilege for employers

Answer 25

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