Findings under the Personal Information Protection and Electronic Documents Act (PIPEDA)

PIPEDA Case Summary #2007-382

Former employer discloses drug testing information

[Principle 4.3, 4.3.5 and 4.3.6; subsection 5(3)]

Lessons Learned

  • A prospective employer should obtain a job applicant’s express consent to ask his or her former employers about the applicant’s previous employment.
  • Such consent does not have to be specific, for example as to drug testing, so long as consent is given for inquiries relevant to hiring the applicant.
  • A company providing a reference to a prospective employer of a former employee should ensure that it receives a copy of the former employee’s consent to the disclosure of his or her personal information.
  • It is reasonable to expect a former employer to give factual answers to reasonable questions about a former employee’s work history as long as the information directly relates to employment history and performance.
  • If drug testing is part of the individual’s work history and performance, the former employer can reasonably disclose such information if asked.

Following a job interview, the complainant, a truck driver, learned that his former employer had told a prospective employer that he had been released from employment because he had tested positive for drugs.  The complainant maintained that he did not consent to the release of such information.  The Privacy Commissioner did not agree.  The complainant likely signed an authorization form that allowed the prospective employer to conduct investigations and inquiries into his employment history and permits the former employer to also release such information.  As drug testing information is relevant to employment history, the disclosure was permitted.

The following is an overview of the investigation and the Commissioner’s findings.

Summary of Investigation

The complainant claimed that at the end of a job interview with a prospective employer, he was offered a position.  He recalled providing a résumé, but did not recall signing any specific consent form authorizing the company to check with previous employers.  He acknowledged signing “employment documents” but did not recall signing any authorizations concerning drug test results from previous employers.  He claimed that the prospective employer told him that such forms were not necessary.  He stated that, shortly afterward, the prospective employer called him back to tell him that the job offer was being rescinded because his previous employer had provided information about drug testing results.

The former employer acknowledged that it disclosed information about the complainant’s performance as an employee, in response to questions posed by the prospective employer.  According to the former employer, the other company asked typical reference questions, such as dates of employment, work habits, and so on.  The other company then asked if the complainant had been subject to drug and alcohol testing, to which the former employer responded yes.  The former employer stated that the other company asked if there were any problems with this testing, and it stated that the complainant had failed the testing.  The former employer, however, acknowledged that it should have received the appropriate consent form from the prospective employer before disclosing that information.

The other company stated that it does not make conditional offers of employment before checking references.  It contacted the previous employers listed on the complainant’s résumé and provided the Office with a copy of the questions it asked the former employer, along with the responses.  The questions are part of a standard reference check form.  According to the other company, when it asked the former employer if it would re-employ the complainant, the former employer responded negatively.  When asked for the reason, the former employer indicated that the complainant had tested positive for drugs on two occasions and that he had been released from employment because of these results, consistent with company policy.  The former employer did not disclose the specific results of the tests to the other company. 

One of the employees of the other company (who was involved in the interviewing and reference checking process) was of the view that since the complainant was applying for a job and had submitted a résumé, this authorized the company to collect previous drug testing information.  The employee who interviewed the complainant did not recall saying anything to him about any form authorizing the company to inquire about prior drug testing. 

Because he was not hired, the other company did not keep a copy of the complainant’s application form or any résumé he may have submitted.  The company could not recall whether he had provided a résumé; nonetheless, even with a résumé, he would still have had to complete the application form.  The complainant confirmed with this Office that he had completed an application form with the other company. We reviewed a copy of the other company’s standard application package.  The applicant must list all employers during the preceding five years and include the contact names and numbers of two references.  There is also a clear statement regarding the consent given by the applicant to the company to contact employers to do an investigation before hiring the applicant. 

The other company stated that since the complainant had applied to drive in Canada, the application package did not contain any specific form regarding drug testing or past drug testing results (applicants who will be crossing into the United States must fill out such a form with the application documents).

The complainant stated that he had expected his former employer to provide information about his employment history and performance, but not the information about the drug tests.  In his opinion, his former employer should not have provided this information since he had not signed any form that specifically authorized such disclosure.

Findings

Issued July 27, 2007

Application: Principle 4.3 states that the knowledge and consent of the individual are required for the collection, use, or disclosure of personal information.  Principle 4.3.5 states that in obtaining consent, the reasonable expectations of the individual are also relevant. Principle 4.3.6 stipulates that an organization should generally seek express consent when the information is likely to be considered sensitive. It goes on to state that implied consent would generally be appropriate when the information is less sensitive.  Subsection 5(3) states that an organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances.

In making her determinations, the Commissioner deliberated as follows:

  • When the complainant applied for work, he provided the prospective employer with a copy of his résumé.  It can be assumed that he listed the respondent as a previous employer, although no copy was kept of this résumé to support this. 
  • The Commissioner noted that the complainant would reasonably have expected that a prospective employer would ask a former employer about his driving performance and history.  It was likely that the complainant had provided express consent by signing an authorization form that allowed the prospective employer to make investigations and inquiries of his “employment and other related matters as may be necessary in arriving at a final decision” with respect to hiring him.  The same authorization released employers from all liability in responding to inquiries and releasing information in connection with his application. 
  • In the Commissioner’s view, the fact that company let him go because of drug testing results was information relevant to his employment history.
  • The Commissioner also noted that it was difficult to accept that providing a factual response to a reasonable question that happens to also disclose sensitive medical information was unreasonable in the circumstances.  The former employer was disclosing standard information when the drug testing history was revealed because the complainant’s testing information was part of his employment history and performance.  In her view, this was an appropriate response in the circumstances, and not in contravention of subsection 5(3).
  • Therefore, she found that the former employer did not contravene Principles 4.3, 4.3.5 and 4.3.6.

The Commissioner concluded that the complaint was not well-founded.