A new California privacy case underscores the need for employers to respect the privacy of job applicants and maintain confidentially, regardless of whether information is shared in written form or in conversation. Although the case did not involve background checks, it concerned discussion of an employee’s personal medical condition with co-workers. The case is Ignat vs. YUM! Brands, Inc. filed March 18, 2013 for the California Fourth Appellate District.
In that case, the plaintiff sued the employer for allegedly disclosing to coworkers her bipolar condition. The lawsuit was based upon a tort cause of action called public disclosure of private facts, where the information would be offensive to reasonable people and there is no justification for the information to be made public. The trial court granted the employer’s motion to dismiss on the grounds that California case law required that any such communication be made in a document and that oral statements could not be the basis for a lawsuit.
The Court reviewed the history of the requirement that the information must be disseminated in a document, and concluded there was no basis for this old rule. The court also left open the possibility that another defense to a lawsuit for public disclosure of private information was that “disclosure to a few people in limited circumstances does not violate the right.”
The lesson for employers is that information contained in a background check report is both confidential in nature and private. It is not only important to protect the actual report and to limit its circulation only to those with a strict need to know for business related purposes, but even talking about the contents can invade privacy if revealed to those with no legitimate need to know about the contents.
In addition to such common sense practices as keeping the actual report in a separate file or on a protected hard drive only accessed by Human Resources or management that needs such information, or maintaining the reports securely on the background check firm’s system, an employer should also train its staff to not even discuss the contents of report unless there is a need to know.
The increased focus on greater privacy protections for job applicants and employees regarding data collected during background checks is one of the ‘ESR Top Ten Background Check Trends for 2013’ selected by Employment Screening Resources® (ESR). The full list of top trends from ESR is available at http://www.esrcheck.com/Top-Ten-Background-Check-Trends-for-2013.php.
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