What Can You Ask?

By Bequai, August | Security Management, November 1991 | Go to article overview

What Can You Ask?


Bequai, August, Security Management


THE PRESENT JOB MARKET IS SO competitive that some job applicants have turned to falsifying their credentials and employment histories. This has led employers to ask if they have the right to confirm whether a job applicant really obtained the degree or held the position he or she claims to have held. The answer to these questions is yes-but only up to a point.

Here are some examples that illustrate the constraints under which today's employers work. The first example involves an applicant for a management position with a New York insurance company.

The applicant gave his previous supervisor as a reference. When contacted, the supervisor said, "John always drank on the job. " The applicant sued both his former employer and the supervisor, charging that the statement was false and malicious. The court awarded him $200,000 in punitive damages.

Another example involves a business school graduate who applied for a job with a California oil company. In the course of the interview, she said that she had graduated a Phi Beta Kappa.

In an attempt to verify her claim, a company official impersonating the applicant contacted the school to confirm her statement. The applicant was turned down for the job when the official discovered that she had lied. She subsequently discovered what had happened and sued the company for invasion of privacy. The court awarded her $150,000 in damages.

As these cases show, federal and state privacy laws have made the task of screening job applicants more difficult and demanding, as well as fraught with legal pitfalls. An employer that runs afoul of these confusing laws could find itself the target of a successful lawsuit. Damage awards in this area of law now exceed $500,000 for many cases, and there's no limit in sight. Today's security manager can ill afford not to understand the privacy rights of job applicants. UNDER COMMON LAW, JOB APPLICANTS enjoy three key rights to privacy: the right not to be portrayed by a former or prospective employer in a false or misleading light; the right not to have a prospective employer make disclosure of private facts; and the right to be free from unwarranted intrusions by a prospective employer.

The first of these rights has been the easiest for the courts to apply, largely because the concept of private property revolves around it. In short, an applicant's name and related personal information are the applicant's, to do with as he or she pleases. A third party, employers included, may not misuse or take liberties with them without the applicant's permission.

Thus the courts recognize an applicant's right to sue a former or prospective employer that places him or her in a false or misleading light. Punitive damages are a certainty if an applicant can show that the employer or its agents acted maliciously. And ignorance is no defense.

However, to prevail in such a lawsuit, an aggrieved job applicant must demonstrate three facts: * that the employer released the information without his or her authorization * that the information was false * that he or she suffered harm as a result of the action

Under common law, job applicants also have the right to be free from unauthorized disclosures of private facts. For example, test results and medical records are private and confidential. For an employer to disclose them without authorization could constitute an invasion of privacy. Further, an employer that gains access to such information surreptitiously runs the risk of legal sanctions due to such actions.

In addition, in suing over an unauthorized disclosure of private facts, all that the aggrieved applicant needs to show is that the employer released the information without authorization and that the release resulted in some type of loss, pain, or suffering.

Finally, a job applicant may sue an employer for unwarranted intrusions into his or her private life. For example, in checking out references and contacting former employers, an employer should confine the questions to topics closely related to the job at hand. …

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