Should employers worry about privacy issues? It goes without saying that people seeking employment have basic rights, just like everyone else. They are fundamental rights guaranteed to everyone by the Constitution and the Bill or Rights. The particular right which we’re concerned with at the moment is the 4th Amendment of the original Bill of Rights, which has to do with protection from Unreasonable Search and Seizure. Since 1791, the United States Supreme Court has been defining and redefining what Amendment IV actually means. Over the last two centuries, it has evolved into a fundamental right to privacy.
It is this right to privacy that really goes to the heart of any legal risks associated with reference and background checking. At this level of analysis, there are almost no risks associated with checking references and virtually no risks at all associated with checking public records – they’re called “public” records for a reason! Anybody, and I mean anybody, is allowed to walk into the county courthouse and check to see if a person has ever been convicted of a crime. Because the same Bill of Rights guarantees us a “speedy and public trial,” the records associated with that proceeding are also public!
On the other hand, medical records are private and nobody can gain access to those records because they’re not public records. “But,” you contend, “I just applied for life insurance, and they wanted to know my medical history. How private is that?” The answer is that, if you don’t want the insurance company to have access to your medical records, you can always say “no.” But don’t be surprised if the insurance company declines to insure you! Nobody is going to take it on faith that you’re in good health. That’s why life insurance companies insist on being given permission to check your medical records.
Now we’re down to the key distinction between public and private records. No record is really private, no matter what the law may say, if you give someone permission to see that otherwise private medical record. The same is true with reference and background checking. Ordinarily, talking to previous employers about a former employee’s job performance could be an invasion of privacy. But, if we want to continue to be considered for employment, most of us will give the prospective employer permission to talk to people for whom we’ve worked.
The bottom line is that most of us are willing to give up some of our privacy rights in exchange for things we want, like life insurance or, more to the point – a job!
(Next time I’ll talk about the legal risks of not checking references.)