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Infolawyer
Infolawyer, Lawyer
Category: Employment Law
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Experience:  Licensed attorney helping employers and employees.
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My good friend is a custodian at a school district...so technically

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My good friend is a custodian at a school district...so technically a state employee I guess. yesterday the HR director for the school district called him into a meeting and asked him to bring a trusted co-worker. He proceeded to tell my friend that someone who applied for a job with the county, (not the school district, the county which is a separate entity), had to take a pre-employment lie detector test. In the course of this test, this person admitted he'd sometimes looked at what could be considered pornographic material on his own time outside of work, (not illegal porn, just 'regular' porn). He also admitted that he'd sent pornographic jokes to friends as text messages on occasion, and then named my friend as someone who he might have sent dirty jokes as text messages in the past. Somehow someone in the county government took this bit of information from this lie detector test, contacted the school district, and reported that one of their employees names had come up in the test. They then told the district that according to the job applicant, the school district employee (my friend the custodian) might have received a text from him, possibly during work hours, on his own personal cell phone, (not a district owned phone). Now the district is threatening him and telling him they will put this in his 'permanent file' and that this will follow him forever. Is this legal? Can someone else's pre-employment lie detector test be used against an employee who has their name come up in the test when they don't even work for the same entity? Additionally, can someone be disciplined for material someone else texts them? There isn't even any evidence that this material was EVER sent as my friend doesn't remember if this guy ever sent him anything? Besides that, it wasn't an illegal activity, and it was his personal phone. This could result in further disciplinary action. What should he do??

INFOLAWYER :

Hello and thank you for the question. I am sorry to read of this dilemma.

INFOLAWYER :

Even assuming the information provided was true

INFOLAWYER :

and such detector exams are not reliable

INFOLAWYER :

and not admitted in court in most cases

INFOLAWYER :

at most, it shows that this person received the comments

INFOLAWYER :

that is beyond his control

INFOLAWYER :

and would not be a reason to reprimand him.

INFOLAWYER :

it is also a private matter falling outside work

INFOLAWYER :

further, the suggestion appears to not be accurate and may also be denied

INFOLAWYER :

He should therefore if confronted by it, explain he recalls not receiving anything from him but in any event didnt actively do anything wrong

INFOLAWYER :

one cannot control what one receives

INFOLAWYER :

Is that clear?

Customer:

Yes that is clear. Should he, however, take any steps to get this disciplinary report removed from his file? As a custodian in a school district, the word "PORNOGRAPHY" would almost guarantee that if he searched for another like job he wouldn't be hired. Can they legally put that information in his file?

Customer:

And was it even legal for the county to share the information they uncovered in someone else's pre-employment lie detector test? Aren't those somehow protected and only viewable by the employer who ordered it? I feel like he has had some real rights violated here.

INFOLAWYER :

It depends what is put in there

INFOLAWYER :

from what you mentioned nothing negative would be inferred

INFOLAWYER :

and there is no reason to place anything in his file as he did nothing wrong

INFOLAWYER :

if someone commits a crime or violation and sends something to someone else, the recipient has not violated the law

INFOLAWYER :

he should ask that it not be placed in his file

INFOLAWYER :

since not HIS conduct

Customer:

The HR director said he should have told him not to text him that stuff. And that he would have to place a summary of it in his file, that he'd received pornography on his phone during the school day.

INFOLAWYER :

received? one cannot control receipt

INFOLAWYER :

he should object to that being included in his file

INFOLAWYER :

since it is not a voluntary act

Customer:

Okay, if they still put it in should he fight it legally?

Customer:

Can he do that?

INFOLAWYER :

He should pursue options to have it removed

INFOLAWYER :

including internally by internal appeal

INFOLAWYER :

litigation is too agressive and expensive

INFOLAWYER :

and the inclusion practically is not so significant

INFOLAWYER :

He should not spend money and time on a lawsuit

INFOLAWYER :

over a relatively harmless comment that doesnt reflect on him

INFOLAWYER :

and should have no impact

Customer:

Okay, thanks for the info. He is just worried that they are trying to fire him over this, or force him to resign, and then another school would be afraid to hire him. Schools are super weird about any implications of hiring someone with any kind of disciplinary action related to anything like pornography etc. It's a black ball type thing. I will tell him all this information. Thank you very much.

INFOLAWYER :

very welcome

INFOLAWYER :



Kindly rate the answer positively

INFOLAWYER :

No need to worry.

INFOLAWYER :

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