Head Start and the privacy of employee records

Head Start and the privacy of employee records

There’s a whole section of the Head Start Program Performance Standards dedicated to the privacy of child records, but what about the privacy of employee records?


The regulations do address the privacy of employee records, but in a more subtle way.  The standards of conduct, which must be followed by all staff, consultants, contractors and volunteers, require compliance with “program confidentiality policies concerning personally identifiable information about children, families, and other staff members.”  45 C.F.R. § 1302.90.

In the preamble to the Head Start Program Performance Standards (essentially, the place where the Office of Head Start (“OHS”) provides more explanation for the regulations), OHS notes that “we expect programs will address confidentiality in their written policies and procedures because paragraph (c)(1)(iv) requires programs to ensure all staff, consultants and volunteers comply with confidentiality policies.”  OHS made this comment in response to a concern about the privacy of employee background checks, suggesting that OHS was talking about written policies and procedures regarding the privacy of employee records.

The regulations do not detail exactly what should be in your policies and procedures protecting the privacy of employee records (the confidentiality of child records, on the other hand, is addressed in Part 1303, Subpart C).  The content of the policy and procedure is left up to the Head Start agency, federal and state law.  In crafting a policy and procedure, programs should do the following:

  • Look to federal and state law. Many federal and state laws regulate the privacy rights of employees.  Some laws are focused on preventing employers from violating an employee’s privacy outside of the workplace.  The Stored Communications Act, for example, regulates the ability of employers to gain unauthorized access to employee social media accounts.  Other laws are dedicated to protecting the privacy of employee records collected in the workplace.  The Americans with Disabilities Act, for example, requires employers to keep medical information in separate files and take measures to ensure that the files remain confidential.  Many state laws also address employee privacy, and should be consulted.
  • Be transparent. Explain in plain, understandable language exactly how employee data is used and protected.  Giving advance notice to employees helps to set expectations.  Well-drafted policies and procedures can also provide employers protection in litigation.
  • Consult an employment lawyer. As with any personnel policy, consult an employment lawyer to make sure that your privacy policy and procedure complies with all applicable law.

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