One of the major issues surrounding privacy rights is the information gathered and shared by employers. At the top of this list of issues is the maintenance and use of personnel files. Additionally important, however, are workplace practices surrounding polygraph testing, drug testing, computer and telephone monitoring, and interference with personal lifestyle.
With the exception of polygraph testing, the United States Constitution and national privacy laws offer little in the way of formal privacy protection in workplace activities. Because of this, employers have significant latitude in their privacy practices, ranging from the collection of data on employees to the regulation of access to personnel files, to disclosure of personal data and file contents to third parties. Despite the lack of federal protections of privacy in the workplace, there are some limits on employers in the form of state constitutional provisions and statutes, as well as the development of a common law right to privacy.
Even before any formal employment begins, employers collect information about their employees and job applicants from a variety of sources, mostly from the employee or applicant himself. Data is gathered through resumes, applications, questionnaires, and interviews prior to employment and at the point of hire. Once an individual is employed, his employer may make periodic inquiries in the form of performance evaluations and data management. Additionally, an employer may request or require personality and psychological tests, skills tests, and medical examinations, both before and during employment.
In addition to information directly from job applicants, employers may also seek information from former employers and professional references. They may also request educational, military, and medical records, and may require credit and criminal background checks. Further, some jobs require security clearance, meaning that a government agency will conduct a complete security investigation involving a search of FBI, police, and other government databases as well as interviews with colleagues, neighbors, and acquaintances.
Limits on Data Gathering
There are in place some state laws that prohibit employers from requesting specific kinds of information from prospective or current employees. Some, for example, do not permit employers to ask about arrests that do not end with a conviction. In reality, however, these laws are specific and not at all far reaching; there are very few restrictions on the kinds of information that employers may obtain.
Unfortunately, most individuals are not in a position to cast doubt on an employer’s right to ask for certain types of information. Applicants especially are often required to sign confidentiality waivers that allow the employer to obtain otherwise private information from virtually any source. Although signing is technically optional, employers are likewise under no obligation to hire or even consider applicants who refuse. Another important thing to remember is that there are state and even federal laws that either permit or require certain kinds of information for employment occupational-licensing purposes.