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Personnel Records: You can gather a variety of information about applicants for employment. After employed, additional information accumulates about the employee’s performance, health, family and other personal issues. Growing concern over the possession of this data has contributed to states and the federal government developing laws governing the privacy of employer records.
Keeping Personnel Records Private: Improperly releasing personnel information can result in liability. The right to privacy guaranteed by the California Constitution protects employee personnel files from improper disclosure to third parties. An employee can waive the privacy of his/her own personnel records by authorizing the release of personnel information to a third party, such as his/her union. When a former employee sues you for wrongful discharge, failure to promote, a disciplinary action or other employment decision, the court generally holds that the employee has placed his/her employment history at issue, thereby waiving the right to privacy for his/her personnel records for purposes of the lawsuit. You have a number of potential liabilities for improperly releasing personnel information. For example, you cannot make misrepresentations about a former employee to prevent or attempt to prevent him/her from obtaining employment. You can make a truthful statement about the reason for a former employee’s discharge or voluntary termination. However, exercise caution. If your statement is not in response to a request or is accompanied by marks or symbols that convey information contrary to the statement, that action is considered misrepresentation. Even when your response to a prospective employee’s appropriate request is truthful and accurate, liability can arise if that response is adverse and in reprisal for the employee’s exercise of the right to file a claim under employment laws. You can also be liable for inaccurate or misleading information about an employee on the basis of defamation or interference with prospective economic advantage. Defamation is an unlawful invasion of an individual’s interest in maintaining a favorable reputation. It encompasses communications that have a tendency to injure a person in his/her occupation. Unlawful interference with prospective economic advantage can occur when a prospective employer decides not to hire an employee based on false statements or inappropriate facts disclosed by a former employer.
Electronic Health Records: Electronic health records must be protected. If you keep electronic medical information, you must comply with these new requirements:
Genetic Information Nondiscrimination Act (GINA): GINA prohibits the use of genetic information, including family history, to make decisions about health insurance and employment, and restricts the acquisition and disclosure of genetic information. Title II of GINA represents the first legislative expansion of the EEOC’s jurisdiction since the Americans with Disabilities Act of 1990. Congress enacted GINA in response to concerns that individuals would decline to take advantage of the increasing availability of genetic testing out of concern that they could lose their jobs or health insurance if tests revealed adverse information. GINA covers private employers with 15 or more employees. GINA generally prohibits employers from requesting, requiring or purchasing an applicant’s or employees genetic information, even if the employer never uses that information. Title II of GINA prohibits employment discrimination based on genetic information and restricts the acquisition and disclosure of genetic information. The U.S. Equal Employment Opportunity Commission issued final regulations implementing the employment provisions (Title II) of the Genetic Information Nondiscrimination Act of 2008. According to the EEOC, “genetic information” includes:
California Protections for Genetic Information: California enacted legislation that clarifies the extent of the protection of genetic information in California. The legislation amends the Fair Employment and Housing Act to state that employers are prohibited from discriminating against employees on the basis of genetic information. The legislation further amends the Unruh Civil Rights Act, which generally prohibits business establishments from discriminating on specified bases to include genetic information as one of the protected basis. The legislation also expands the bases upon which a health facility may not discriminate in the provision of emergency services.
The anti-discrimination provisions of FEHA apply to employers who employ five or more persons, compared with the federal scope that is limited to employers with 15 or more employees.Under the state law, genetic information means information about any of the following:
Keeping Social Security Numbers Private: California law on the use and publication of SSNs prohibits:
Keeping Employee Information Private: You can gather a variety of information about applicants for employment. Once employed, additional information accumulates about the employee’s performance, health, family and other personal issues. Growing concern over the possession of this data has contributed to development of laws governing the privacy of employer records. For privacy reasons, files related to employee financial matters, such as wage assignments, garnishments, credit inquiries and so forth, must be kept in a confidential file separate from an employee’s personnel file. Access to this confidential file should be granted only to those people in your organization who have a legitimate need to know the information.
Keeping Medical Information Private: California law mandates that you establish appropriate procedures to keep all employee medical records and information confidential and protect them from unauthorized use and disclosure. Failing to establish these procedures is a misdemeanor and allows an employee to collect monetary damages, attorneys' fees and the costs of litigation. Under state statutes, you cannot use or disclose medical information pertaining to your employees without a written authorization from the affected employee. This prohibition includes knowingly permitting an employee to use or disclose another employee’s medical information. Discussing an employee’s private medical information with other employees who do not have a need to know the information can also lead to claims of invasion of privacy. For instance, in one case a California court of appeal clarified that an employee may bring a lawsuit against an employer who publicized a private medical condition by discussing it with employees who did not need to know the information. The employee, Melissa Ignat, worked for Yum! Brands (Yum), the corporate parent of various fast food franchises, from 2005-2008. During that time, Ignat suffered from bipolar disorder. She took medication to control the disorder, but the side effects of that medication occasionally caused her to miss work. In 2008, Ignat went on a disability leave. While on leave, Ignat’s supervisor told everyone in the department that Ignat was bipolar. Ignat claimed she was subsequently avoided by and shunned by her co-workers. One co-worker allegedly asked the supervisor if Ignat was likely to "go postal." Yum terminated Ignat in September 2008. Ignat filed suit against Yum and her supervisor, alleging, among other things, invasion of privacy by public disclosure of private facts.The court allowed Ignat to proceed with her lawsuit, holding that private facts can be just as widely disclosed verbally as they can be through writings, if not more so.This case highlights the need to limit the disclosure of sensitive medical information. However, medical information can be disclosed in limited circumstances:
Keeping Other Protected Medical Records Private: Records protected under state and federal privacy laws encompass more than a physician’s report or the lab results from a drug test. Medical records can include: