Fingerprints & Photographs

employee rights finger print and photographs

An employer states that a photograph of a potential employee is required after they have been hired. Is that legal? In most situations that would be acceptable. But requiring a photograph to be attached to an application is unacceptable, and potentially indicates discrimination, according to the Department of Fair Employment and Housing. The EEOC advices employers that they should not ask for a photograph of an applicant. This is suggested because it could enable employers to engage in profiling. If needed for identification purposes, a photograph may be obtained after an offer of employment is made and accepted. Additionally, California employers must have permission to use employee photographs for marketing purposes, such as on their web site or for promotional literature, under California Civil Code Section 3344.

Generally speaking, employers may require fingerprints of job applicants or employees. They must give advanced notification to the employees that they will be doing so. Many industries in California are also allowed by statute to require or permit the acquisition of employee fingerprints, including auctioneers, and employees in the repossession business, armored vehicle personnel, private investigators, and security guards who carry weapons.

However, an employer cannot supply those fingerprints or photographs to any third party, including police or other government agencies, such that it could potentially be used by those third parties to hurt the employee or applicant. Triple damages are available to those who sue an employer or potential employer after it has been determined that they provided fingerprints or photographs to anyone outside the business, who used the information to cause the employee or applicant damages.

Fingerprints used to be done in ink and applied to a card. Currently, it is more often that fingerprints are scanned and transmitted digitally to the Department of Justice, who checks them for criminal history. If the person has no such history, a clearance is sent to the employer and to the applicant.

Background checks of this nature are required of all applicants, licensees, adult residents, some volunteers and employees of community care facilities, if those persons will have contact with clients, under the California Health and Safety Code. In such a case, the Department of Justice informs the Caregiver Background Check Bureau if the person has no criminal history. If they do have a criminal history, they send a copy of the criminal record to the board. The board also reviews the criminal history for convictions of crimes considered exempt. In such cases, the applicant receives a letter notifying them how to request an exemption by the board, but may not work at the facility until the exemption is granted.

For more information or for a free case evaluation call 1-877-219-8481

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