Chapter 17 Privacy on the Job: Information, Monitoring and Investigations

1. Chapter 17Privacy on the Job: Information, Monitoring and Investigations

2. Early in the 20th century, Ford Motor Co. had a “sociological department” with 100 investigators who monitored employees, often in their homes, to make sure they did not drink too much, they led “unblemished” sex lives, their houses were clean, and their leisure time was properly spent. Job applications asked, among other things, whether the applicant smoked, gambled, or was divorced.

3. Many employers are still taking action against employees because they find the employee’s off the job behavior objectionable. • Employees have been fired for: • Dating someone while married to another • Living with someone outside of marriage • Smoking • Drinking • Motorcycling

4. Expectation of Privacy • Both public and private employees may seek to assert an expectation of privacy, though Constitutional protections apply to public, but not private, employees • Whether there is a reasonable expectation of privacy is a case-by-case determination based on policies, practices, and other circumstances

5. Public Employees Constitution 4th Amendment Search & Seizure Privacy Act Electronic Communications Privacy Act (also private employees) Private Employees Public policy Tort Law: Defamation Invasion of privacy Specific statutes Smoking, etc. C.B.A. Sources of Privacy Rights

6. Privacy Protections: Constitutional • Public employees enjoy privacy rights deriving from the 4th Amendment to the U.S. Constitution, which prohibits unreasonable searches and seizures. • Note that such rights have limits. • Public employers need not establish probable cause or obtain warrants before conducting workplace searches. • Note that such searches and other actions impinging on privacy must be reasonable.

7. Just the Facts • The FBI received a tip that an employee of an IT company was accessing child pornography from his workplace computer. When approached by the FBI, the company confirmed that the employee had regularly visited such Web sites. The employee’s office was entered in the evening by company officials and copies were made of the contents of his computer’s hard drive. All of the computers in the workplace were property of the employer and the employer was able to monitor all employees’ Internet activity. Employees were told when hired that their computer use was subject to monitoring and that computers should not be used for personal business. The employee was the only user of the office and it was kept locked. A password created by the employee was needed to use the computer. After the employee was arrested and charged with crimes, he argued that the FBI had violated his constitutional rights by searching his computer without a warrant. Did this employee have a reasonable expectation of privacy in the contents of his workplace computer? Did the government violate his constitutional rights by conducting an illegal search? • United States of America v. Ziegler, 474 F.3d 1184 (9th Cir. 2007).

8. Public SectorEmployee Privacy • Federal, state and local employees are protected from government intrusion • Constitutional protection • The Fourth Amendment protects against unreasonable search and seizure • Collection of personal information has been considered a search • Detaining an employee may lead to charges of false imprisonment

9. The 5th and 14th amendments protect employees’ rights to privacy • Court has not addressed the right to be free from mandatory preemployment medical tests • The Privacy Act of 1974 • Restricts governmental intrusion into the lives of federal employees by limiting the disclosure of employee information • Allows for criminal penalties and civil remedies

10. Georgia Statute O.C.G.A. §16-11-62 • Prohibits recording conversation in a clandestine manner. • Prohibits using device to observe persons in a private place. • Exception for security & crime prevention

11. Private Sector Employee Privacy • Constitution protects citizens from government excesses • Private sector employees may seem to be defenseless • Other bases for right to privacy in the private sector • Some state legislatures have enacted privacy statutes protecting private employees in certain situations

12. Tort law protections • Invasion of privacy • Defamation • Breach of contract • Employers may regulate employees’ off-work activities when workplace performance is affected • Not all information is protected by the right to privacy • Job applicants are most vulnerable

13. Privacy Protections: Common Law • Whether there is a reasonable expectation of privacy is a case-by-case determination based on policies, practices, and other circumstances. • Most states recognize the following privacy torts: • Intrusion upon seclusion • Public disclosure of private facts • Placement in a false light • Appropriation of a name or likeness

14. Elements of a Claim – Intrusion Upon Seclusion • Plaintiffs must show: 1. An intentional intrusion, physical or otherwise; 2. into something truly private; and that 3. THE INTRUSION WOULD BE HIGHLY OFFENSIVE TO A REASONABLE PERSON.

15. Elements of a Claim –Public Disclosure of Private Facts • Plaintiffs must show: 1. A public disclosure occurred; 2. The disclosure involved facts that were truly private; 3. The disclosure would be highly offensive to a reasonable person; 4. The disclosure was intentional; and 5. The matter disclosed is not of legitimate concern to the public.

16. Elements of a Claim –Intentional Infliction of Emotional Distress • Plaintiffs must show: 1. Intent to harm; 2. Behavior that is so outrageous, shocking, or atrocious as to be beyond the bounds of what is tolerable in a civilized society; and 3. Severe emotional harm or distress.

17. Elements of a Claim –Intentional Infliction of Emotional Distress • In order to recover in Georgia, the emotional distress must accompany a physical injury.

18. Privacy: Statutory Protections • Several statues concern privacy or have privacy-related provisions: • The Privacy Act • The Electronic Communications Privacy Act • The Americans with Disabilities Act • The National Labor Relations Act • The Occupational Safety and Health Act

19. Employee Records • While a few states have laws governing an employer’s handling of personnel records, the employer’s policy generally controls. • The federal Privacy Act governs the handling of personnel records of federal employees. • Some states grant employees the right to review and copy their personnel files, and restrict access by others. • Employers generally must allow union representatives to see the personnel files of their members. • Recommended: Even though few private-sector employers are legally required to do so, it is sensible to obtain the consent of employees prior to divulging information from their personnel records to third parties.

20. Medical Information- ADA • Only medical information that is job-related and consistent with business necessity can be obtained from current employees. • Employers must keep information regarding an employee’s medical condition or history in a location apart from other personnel records and treat it as a “confidential medical record.” • Such information should be made available to managers, supervisors and first aid personnel for reasons of reasonable accommodation and treatment.

21. Medical Information – OSH Act • Employees and unions have the right to access members’ medical and exposure information. • Such access must generally be provided within 15 working days. • Medical monitoring of employees may be required. • Records of exposure to toxins must be kept for 30 years. • Medical records must be kept for the duration of employment, plus 30 years.

22. Medical Information – HIPAA • Regulations primarily affect health care providers and self-insured companies. • Any employer that receives protected health information from insurers or health care must: • Limit the uses and disclosure of that information; • Train staff on maintaining the privacy of medical information; • Designate a privacy officer with responsibility for compliance; and • Notify employees of their rights.

23. Monitoring & Surveillance of Employees • In general, employers can train video cameras on their employees without significant legal concerns, at least in places open to view. • Employers must not conduct surveillance of employees engaged in protected concerted activities, including union organizing. • Recommended: If your firm uses video monitoring, inform employees that they are subject to monitoring and surveillance, even though such notice may not be legally required.

24. Just the Facts • School officials suspected that a physical education teacher was stealing money from students. Two hidden video cameras were placed in his office. The office was also used by other gym teachers and was where the teachers changed their clothes. The office was located within the boy’s locker room and was accessible only by walking through the locker room. The cameras recorded and stored camera images for 30 days. It was unclear whether any school officials actually watched live images from the cameras or reviewed the tapes. When a teacher discovered the cameras, he sued. Were the privacy rights of the teachers violated? • Helisek v. Dearborn Public Schools, 2008 U.S. Dist. LEXIS 25514 (E.D. Mich.)

25. See Smyth v. Pillsbury Co., 914 F.Supp. 97 (E.D.Pa., 1996).

26. Computer Policy-What should be included?

27. Computer Policy-What should be included? • Employer remains owner of equipment • All files and equipment may be searched by employer at any time & w/o notice • Password-protected and confidential files can be searched. • Publish policy • Obtain signed acknowledgements from users. • Regularly remind users of policy.

28. Employers may have a duty to investigate Internet Activity • See Doe v. XYC Corp., 382 N.J. Super. 122; 887 A.2d 1156 (2005).

29. Privacy: Electronic Communications Privacy Act1 • Employers (and others) are prohibited from: • Intentionally intercepting (through the use of electronic, mechanical, or other devices) wire, oral, or electronic communications • Disclosing such information • Unauthorized accessing and disclosure of stored electronic communications • The distinction between “intercepting” and “accessing” has proven troublesome for email and internet transmissions.

30. Privacy: Electronic Communications Privacy Act2 • “Intercepting” generally means capturing the communication at the exact time it is being sent. • Interceptions are legal if prior consent was granted. • Communication service providers are exempt. • Example: An employer’s search of an employee’s stored emails in its own system is not a violation. • Business users of the provider’s equipment are exempt if the equipment is used in the ordinary course of business. • Example: An employer could install additional extension phones to listen in on employees’ business (but not personal) calls.

31. Searches 1 • Generally, employers may conduct workplace searches, subject to the Fourth Amendment (for public employees) and privacy torts (particularly intrusion upon seclusion). • Obtaining consent is best. • Employers should: • Establish policies, • Notify employees regarding the circumstances under which searches will occur, and • Conduct searches only as stated.

32. Searches 2 • Searches should be conducted in a reasonable manner, • not overly broad • not resulting in destruction of employee property • not discriminatory • Evidence obtained through searches, particularly if it relates to potential criminal activity (e.g., weapons, drugs), must be handled carefully and kept in a secure location.

33. Dietz v Finlay Fine Jewelry • Facts: A new employee had trouble posting a purchase transaction for a customer, who became irate, so the employee gave her a 10% discount, which was not authorized. The store security manager took the employee to an interview room, and over the next hour, accused her in front of witnesses of having a drug and alcohol problem for which she had hocked missing pieces of jewelry, and of having credit problems. She sued for defamation and false imprisonment, but lost on a motion for summary judgment. • Issue: Did the factual record reveal that summary judgment was improper for the defamation and false imprisonment claims? • Held: Yes. Genuine issues of material fact were raised by the employee’s evidence .

34. Polygraphs 1 • The Employee Polygraph Protection Act (EPPA) prohibits most pre-employment polygraph exams by private-sector employers. • However, polygraphs can be used for “ongoing investigations” of theft, embezzlement, sabotage, and related activities that result in loss or injury to an employer’s business. • Even then, submission to a polygraph exam cannot be required or made a condition of employment, and an employee cannot be disciplined or discharged for failure to submit.

35. Polygraphs 2 • Employees can be asked to submit to such polygraphs only if: • They had access to the property involved in the investigation; • The employer has reasonable suspicion of their involvement; and • They are given written information (signed by a representative of the employer and retained for at least 3 years) regarding the specific incident or activity being investigated and the basis for selecting particular employees for testing.

36. Polygraphs 3 • During the exam, employees: • Must not be asked questions designed to “degrade or needlessly intrude” on their privacy. • Must not be asked questions concerning religious beliefs, opinions about racial matters, political beliefs, sexual behavior, and beliefs or activities regarding labor organizations. • Have the right to review all questions beforehand.

37. Polygraphs 4 • During the exam, employees:(cont’d) • Must be informed whether any observational (e.g., two-way mirrors) or recording devices are being used. • Have the right to terminate a polygraph exam at any time. • Must not be tested if written documentation from a physician that the employee’s physical or mental condition might cause abnormal responses is offered. • Have the right to a written copy of any opinion or conclusion based on the test.

38. Acting on Results of Investigations • If, following an investigation, the wrong conclusions are drawn and communicated to others, defamation claims may arise, and the qualified privilege may be lost. • Recommended: Treat such information as sensitive and limit communication to those with a legitimate need to know. • Employers who seek criminal prosecution should have reasonable grounds for doing so.

39. Waivers of Privacy Rights • A waiver would exempt the employer from liability for employee claims about privacy issues • Valid waivers must be voluntarily given • Approved waivers contain some form of consideration • Waivers should not be requested prior to a job offer

40. Management Considerations • Employers may search employees’ property where no expectation of privacy exists • Investigate state statutes in the states in which you do business • Any waiver of privacy should be accompanied by an offer of employment • Regulate access to personal information

41. What Would You Do? • You are the manager of a clothing store which caters to young, college-age students in your university town, and most of your employees are college students. One such employee is Leanne. One day at the store, you answer the phone. The caller asks for Leanne, and when you advise that Leanne is not here today, the caller tells you that she is calling from Dr. Wilson’s office to report that Leanne’s HIV test came back positive, and that she should come back in for a re-test as soon as possible. What would you do?