Employers in California increasingly find themselves in an untenable position with respect to potential privacy concerns. On the one hand, the business disadvantages and legal risks of hiring and retaining employees who are incompetent or who otherwise create liability concerns are serious and growing. On the other hand, state and federal laws explicitly forbid the employer from inquiring into many areas of an applicant’s personal life or background. Moreover, judicial application of these laws and regulations make certain questions seem so dangerous for employers that they choose not to ask, or their lawyers advise against asking them. Similar concerns apply with regard to regulation of employee conduct.
Whenever my firm is hired to conduct an audit by a small business owner, I often find that they have poor mechanisms in place to safeguard employees’ personnel files. Generally, they don’t have a designated person to look after these files nor do they have a designated secure place to store these files. Employee files often contain information that is highly personal. As a result, an employer should limit access to these files to those who require it for legitimate business reasons. Failure to do so increase the chances of liability for defamation if the information is false. Even if the information is true, the employee may have a claim for invasion of privacy resulting from the employer’s disclosure of personal information. In some cases, courts have recognized a cause of action for negligent maintenance of personnel files.
If you are confused about the obligation as an employer about maintaining your employees files, please feel free to contact our office at support@rupallaw.com . We will be very happy to assist you and mitigate your liability.
