Workplace Privacy

11.1 Legal Overview

1. Constitutional Law

   1. Private Sector

      1. Constitution does not affect private-sector employment

      2. Employment at Will, Private sector has broad rights to fire (not every state is at will, however there are processes for doing this)

   2. Public Sector has more privacy rights

      1. 4th amendment prohibits unreasonable searches and seizures by state actors.

         1. This is limited to government employers to search employee’s private spaces.

         2. Some states, like CA, extended their constitutional rights to privacy in private-sectors.

         3. In general, however, there is no state action and no constitutional law governs employment privacy.

2. State Contract, Tort and Statutory Law

   1. The employment contract in the US

      1. Can be altered and negotiated to have more privacy

      2. Contracts concerning employee privacy are collective bargaining agreements

      3. CBA Collective Bargaining Agreements – unions have negotiated more privacy at work

         1. limiting drug testing

         2. monitoring of workplace

      4. Most states not all contractual, Most states have limited contractual employment (typically executive), unless you have leverage, you won’t get an employment contract.

      5. Employers typically don’t want a contract.

   2. Tort Law

      1. three common-law torts can be relevant to employee privacy

         1. Intrusion upon Seclusion – intent / intrusion / seclusion / offensive

         2. Publication of Private Facts – Public Disclosure / Private Fact / Offensive

            1. Example

            2. could be highly offensive to a reasonable person

            3. Is not of legitimate concern to the public

         3. Defamation - False or defamatory statement defined as communication tending “so to harm the reputation of another as to lower harm in the estimation of the community or to deter persons from associating with them”

         4. False Light – Publicity / False Light / Don’t Need To Be True (unlike defamation)

   3. Statutory

      1. If privacy is to be protected by law, the task falls largely to the legislatures” rather than to the common-law courts.

      2. CA – women’s right to wear pants at work

      3. FL – women’s right to shop without employer dictating

      4. Prohibiting marital status discrimination

      5. Asking if they filed a claim with Work Comp prior to employment

   4. Summary

      1. In general, employees tend to have narrow protection under contract, tort, and statutory law.

      2. Strongest protection is statutory law. Know the statutory law.

      3. Be aware of the different Tort Claims not likely to be tested.

3. Federal Laws on Employment Privacy

1. Discrimination and benefits laws with some privacy protection

   1. Anti-Discrimination Limiting questioning with respect to what is being protected, such as age, national origin, or disability.

   2. There are also laws that regulate employee benefits management that often mandate collection of employee medical information.

      1. Health Insurance Portability and Accountability Act HIPAA – contains privacy and security rules that regulate “protected health information” for health insurers

      2. Consolidated Omnibus Budget Reconciliation Act COBRA – requires qualified health plans to provide continuous coverage after termination to certain benefits

      3. Employee Retirement Income Security Act ERISA – ensures that employee benefits programs are created fairly and administered properly.

      4. Family and Medical Leave Act FMLA – unpaid leave in the event of birth or illness of self/family.

2. Employment privacy implications regulate data collection and record keeping.

   1. FCRA – regulate the use of “consumer reports” obtained from CRAs in reference checking and background checks of employees

   2. FLSA – establishes minimum wage and sets standard for fair pay

   3. OSHA – regulates work safety

   4. Whistleblower Protection Act – protects federal employees and applicants for employment who claim to have been subjected to personnel actions because of whistleblowing activities

   5. NLRA – sets standards for CBA, which also applies in social media communications

   6. Immigration Reform and Control Act (IRCA) – requires employment eligibility verification

   7. Securities Exchange Act of 1934 – requires disclosures about payment/information about senior executives of publicly traded companies

3. Specific monitoring laws

   1. Employee Polygraph Protection Act of 1988

      1. limits employer use of lie detectors

   2. Electronic surveillance law, including

      1. Wiretap Act

      2. Electronic Communications Privacy Act

      3. Stored Communication Act.

4. U.S. Regulatory Bodies that Protect Employee Privacy

   1. Employee privacy is protected by several federal agencies, including the

      1. U.S. Department of Labor

      2. Equal Employment Opportunity Commission (EEOC), works to prevent discrimination in the workplace. The EEOC oversees many laws, including Title VII of the Civil Rights Act, the Age Discrimination in Employment Act of 1967 (ADEA) and Titles I and V of the Americans with Disabilities Act of 1990 (ADA).

   2. Federal Trade Commission (FTC)

   3. Consumer Financial Protection Bureau (CFPB)

      1. FTC and the CFPB regulate unfair and deceptive practices and enforce a

      2. variety of laws, including the FCRA, which limits employers’ ability to receive an employee’s or applicant’s credit report, driving records, criminal records and other consumer reports obtained from a CR

   4. National Labor Relations Board (NLRB)

      1. Administers the National Labor Relations Act.

      2. The board conducts elections to determine if employees want union representation and investigates and remedies unfair labor practices by employers and unions

   5. Department of Labor (State and Federal)

      1. each state has an agency, often called the Department of Labor, that oversees the state labor laws

11.2 Privacy Issues Before, During and After Employment

1. Workplace privacy issues exist in all stages of the employment lifecycle

   1. Before employment

      1. employers should consider rules and best practices about background screening, including rules for accessing employee information under the FCRA.

   2. During employment, major topics include

      1. Polygraphs

      2. psychological testing

      3. substance testing

      4. employee monitoring

         1. Phone calls and emails

         2. social network monitoring

         3. “bring your own device (BYOD).”

   3. After employment

      1. The main issues are

         1. Terminating access to physical and informational assets

         2. Proper human resources practices post employment

2. Privacy Issues Before Employment (know the prohibitions)

   1. FCRA and antidiscrimination laws create national rules that structure how information is gathered and used pre employment.

   2. Additionally, state laws and CBA can have additional rules.

   3. Background Screening

      1. Certain professions are subject to background screening by law (anyone who works with the elderly, children, or the disabled).

      2. Others, depending on state laws, are: emergency medical service personnel; county coroners; humane society investigators; euthanasia technician in animal shelters; bus and truck drivers; athletic trainers; in-home repair services; firefighters; gaming industry employees; real estate brokers; and IT workers.

      3. Can help defeat a claim for negligent hiring.

      4. Searches of publicly available information have generally been considered a reasonable practice in the U.S. However, significant privacy issues can arise such as requiring candidates to provide their FB passwords.

   4. Antidiscrimination Laws as Limits on Background Screening

      1. Title VII of Civil Rights Act of 1964

      2. Equal Pay Act

      3. Age Discrimination Act

      4. Pregnancy Discrimination Act

      5. Americans with Disability Act

      6. Genetic Information Nondiscrimination Act (GINA)

      7. Bankruptcy Act

   5. The ADA and Medical Screenings

      1. forbids employers with 15 or more employees from discrimination against a “qualified individual with a disability because of the disability of such individual,”

      2. Specifically covers “medical examinations and inquiries” as grounds for discrimination.

      3. Before a job offer, ADA permits examinations/inquiries ONLY where “job related and consistent with business necessity.”

      4. Reasonable Accommodation unless Undue Hardship

         1. ADAAA overturned

            1. Sutton – held that pilots with severe myopia did not have a disability under ADA because a “disability exists only where an impairment substantially limits a major life activity, not where it ‘might’ ‘could ‘would’ be substantially limiting.”

            2. Toyota – rejecting a claim that carpal tunnel syndrome limited a worker’s ability to work with power tools, holding that “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives. It must also be permanent or long-term.”

            3. ADAAA expanded disability to include “conditions that are mitigation, in remission or episodic if they would substantially limit a major life activity of an employee when active or absent mitigation.”

   6. FCRA Restrictions on Background Checks

      1. Regulates how employers perform background checks (credit, criminal, driving records) on job applicants.

      2. To obtain consumer report, employer must:

         1. Written notice

         2. Written consent from applicant

         3. Get data only from qualified CRA

         4. Certify to CRA that employer has “permissible purpose” and has consent

         5. Before adverse action to application, provide pre-adverse action notice to applicant with copy of consumer report so applicant can dispute. If investigation for misconduct

         6. No disclosure/consent signed for these conditions:

            1. The report is used during an investigation of employee misconduct

            2. All laws, organizational policies and rules are followed

            3. The report is provide to the employer, a government agency or officer, and is not used to determine creditworthiness

         7. After taking adverse action

            1. provide adverse action notice

            2. Privacy Issues During Employment – polygraphs and psychological testing; substance testing; employee monitoring, including phone calls and emails; and emerging issues such as social networking monitoring and BYOD.

3. Privacy Issues During Employment

   1. Consumer Reporting Agency Checks - FCRA

      1. FCRA Requirements Applicable To Background And Reference Checks

         1. Complete Background Check - For investigation don't need to authorize/consent to disclose

         2. Pre Adverse Action Notice

         3. Adverse Action Notice

   2. Polygraph and Psychological Testing – the Employee Polygraph Protection Act of 1988 (EPPA) is a federal privacy workplace protection.

      1. Employers are prohibited from using “lie detectors” on incumbent workers or to screen applicants.

      2. It also prohibits employers from taking adverse action against an employee refusing to take a test.

      3. Exceptions:

         1. government employees

         2. security services

         3. controlled substance manufacturers, etc. i

   3. Substance Use Testing

      1. There is no federal privacy statute that directly governs employer testing of substance.

         1. For public-sector, there is the 4th amendment about when such testing is reasonable.

         2. Under ADA, testing for drug use is not a “medical examination.” “However, an alcoholic is a person with disability and is protected by the ADA if he is qualified to perform the essential functions of the job.”

      2. Drug testing used in these settings

         1. Pre Employment—generally allowed if not designed to identify legal use of drugs or addiction to illegal drugs

         2. Reasonable suspicion—generally allowed as a condition of continued employment if there is “reasonable suspicion” of drug or alcohol use based on specific facts as well as rational inferences from those facts (e.g., appearance, behavior, speech, odors)

         3. Routine testing—generally allowed if the employees are notified at the time of hire, unless state or local law prohibits it

         4. Post-accident testing—generally allowed to test as a condition of continued employment if there is “reasonable suspicion” that the employee involved in the accident was under the influence of drugs or alcohol

         5. Random testing—sometimes required by law, prohibited in certain jurisdictions, but acceptable where used on existing employees in specific, narrowly defined jobs, such as those in highly regulated industries

4. Lifestyle Discrimination

   1. Private unless these actions negatively affect other people or are criminal.

   2. Weight – classic case for flight attendance. It was change to one requiring weight that is proportional to their height and age.

   3. Smoking – no federal law protects smokers. However, more than half of states have laws that limit smoking bans to the workplace.

5. Monitoring in the Workplace

   1. Private sectors in general have limited expectations of privacy at workplace.

6. Laws applying to types of monitoring

   1. Video Surveillance (CCTV)

   2. Wiretapping - Intercepting communications

      1. Done during course of business

      2. One party has given consent

   3. Stored Communications

      1. Prohibited - the SCA creates a general prohibition against the unauthorized acquisition, alteration or blocking of electronic communications while in electronic storage

   4. Postal Mail Monitoring

      1. U.S. federal law generally prohibits interference with mail delivery.

      2. Mail is considered “delivered,” however, when it reaches a business.

   5. GPS monitoring – “business purpose only”

      1. Mobile phones, GPS devices and some tablet computers provide geolocation data, which enables tracking of the user’s physical location and movements

      2. Employers interested in monitoring the location of company vehicles equipped with GPS may generally do so without legal hindrance, provided that the monitoring occurs for business purposes during work hours and employees have been informed

   6. BYOD

7. Emerging Technologies to Monitor Employees

   1. Companies today often already have in place a variety of systems to monitor electronic communications.

   2. Three emerging areas are:

      1. How companies are using social media to monitor prospective and current employees

      2. how the IT department copes with what is called “the consumerization of information technology” or BYOD

      3. How companies implement data loss prevention (DLP) programs.

         1. DLP software is controlled by

            1. the use of information security tools

            2. the utilization of training for employee behavioral modification;

            3. the implementation of effective standards, policies, and procedures.

8. Privacy Issues After Employment

   1. Post Employment Requirements

      1. employer should restrict or terminate the former employee’s access to physical and informational assets

      2. follow correct termination procedures

      3. Minimize risk of post-termination claims

      4. help management to transition after the termination and address any privacy claims that arise.

   2. Human Resources Issues

      1. The HR office is often significantly involved in the period before an employee leaves, especially when employees are not leaving entirely of their own initiative.

      2. The HR office often will have detailed and sensitive information about an employee’s performance in the period before termination

11.3 Conclusion

1. constitutional protections apply specifically to government employees

2. Contract and tort remedies can provide protections to employees, but they apply in a relatively narrow set of circumstances.

3. States have enacted a considerable number of statutory protections, but the protections exist against a general backdrop of a free market approach to employment and workplace privacy.