‘Health insurance costs have been eating into corporate profits at an exponential rate. Insuring high-risk workers, like smokers or skydivers, further drives up the cost of insuring everyone else. But to know which workers are high-risk requires still more information, whether from medical tests or personal questions and surveillance. A second justification for workplace monitoring is that employers face liability for the actions of their employees’ (Alderman & Kennedy, 1997, p. 276).
While medical records can be included into background checks, companies often attempt to collect additional information about prospective employees’ preferences and hobbies. In this situation, it’s hard to tell where pre-employment check ends and espionage begins. When companies try to gather data about their employees’ hobbies, especially the ones that might affect medical insurance costs, it’s almost always considered a violation of workers’ privacy rights. One of recent trends in the sphere of background screening is genetic testing.
Genetic testing isn’t banned at the federal level and it’s undoubtedly the most dangerous and major violation. Alderman and Kennedy (1997, p. 286) state that in case of testing, ‘…the nature of the job and the relevance of the test were the truly important considerations. A key principle in the area of workplace privacy – one that links public and private sector, applicant and employee, and the various forms of testing – is whether and how closely the intrusion is related to the job. ’ One of the most widely-used criteria to define privacy breach is the relevance of personal information to the nature of prospective job.
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Some positions imply high degree of responsibility or specific skills, and here privacy intrusion can be justified. But recently in-depth ‘[p]re-employment screens are frequently being used by employers even for jobs that do not involve participating in security-related functions, handling large sums of money, or supervising children or the elderly’ (Solove & Hoofnagle, 2006, p. 375). Upon careful analysis, it becomes evident that employees’ right during the hiring process are quite limited.
Yet it would be considered to be a breach of privacy rights it employer asked about such matters as religion, national origin, pregnancy, age, disability, veteran’s status and union status. It’s also important to keep in mind that state legislation may impose additional, more stringent, regulations in the sphere of employee privacy. For example, the law may prohibit inquiries about sexual orientation, marital status, creed, and political ideology on the local level. Furthermore, it’s illegal to use lie detectors in the process of pre-employment screening.
The Employee Polygraph Protection Act defines lie-detector as ‘a polygraph machine as well as voice stress analyzers, psychological stress evaluators, and other mechanical or electrical devices used to determine honesty’ (Temple, 2006, ‘Employee Privacy in Hiring,’ ‘Polygraphy,’ para. 1). However, even this law has certain exceptions: it’s possible to use lie-detectors for checking applicants for certain positions in government, manufacture of controlled substances, security services, and defense contractors. Large number of privacy violations occurs because of employers’ misconduct while obtaining or processing Consumer Reports.
Generally, Consumer Report is defined as ‘any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for…employment’ (Temple, 2006, ‘Employee Privacy in Hiring,’ ‘Credit Checks and Consumer Reports,’ para.
3). Before such report can be issued by a Consumer Reporting Agency, employer must receive written authorization from the applicant. If a Consumer Report concerns such sensitive issues as consumer’s character, personal characteristics, general reputation, or mode of living, even stricter rules are applied. Such documents are called Investigative Consumer Reports and can be compiled on the basis of personal interviews with neighbors, friends, or associates.
In order to avoid privacy violations, employer should obtain written authorization and make a clear disclosure of the nature of information being collected: ‘This disclosure must be made in writing and mailed or delivered within three days after the report is requested. The disclosure also must include a statement that, upon request within a reasonable period of time, the employer will disclose in writing the nature and scope of the investigation requested’ (Temple, 2006, ‘Employee Privacy in Hiring,’ ‘Credit Checks and Consumer Reports,’ para.
7). Matters related to Consumer Reports are regulated by the provisions of The Fair Credit Reporting Act. Moreover, ‘[i]f the employer takes any adverse action based on the report, the employer must inform the person and provide instructions to obtain a copy of the report’ (Solove & Hoofnagle, 2006, p. 360).
Additionally, there is information that cannot be subject to pre-employment screening, specifically any data related to bankruptcies after the period of ten years; paid tax liens after the period of seven years; civil suits, civil judgments, and records of arrest, from date of entry, after the period of seven years; accounts placed for collection after the period of seven years; any other negative information, excluding criminal convictions, after the period of seven years. In reality, the vast majority of pre-employment privacy right violations occur due to improper management of personal information by employers.
This can include the uses of such information not justified by an obvious necessity or disclosure of confidential information to third parties.
1. Alderman, E. & Kennedy, C. (1997). The Right to Privacy. New York: Vintage. 2. Nadell, B. (2004). Sleuthing 101: Background Checks and the Law. Chatsworth, CA: InfoLink Screening Services, Inc. 3. Solove, D. J. & Hoofnagle, C. (2006). ‘A Model Regime of Privacy Protection. ’ Illinois Law Review, Vol. 2006, pp. 357-403.