Chapter 17 Employee Privacy Topics

1. Chapter 17Employee Privacy Topics Issues: Employer’s Right of Search and Seizure – Private Sector Public Employees’ Privacy Rights Disclosure of Employee Information & Employee Defamation Claims Monitoring Employee Telephone & E-Mail Drug Testing & Alcohol Abuse – EAP’s Record Keeping

2. Privacy Rights • Legal protections can be found in constitutions, common law, & statutes. • Courts generally view the privacy rights of employees as “minimal”. • Constitutional Protection: No explicit right to privacy under the U.S. Constitution: • 4th Amendment protection against unreasonable search or seizure has been used. O’Connor v. Ortega – specifically addresses privacy rights of public sector employees. • Some state constitutions do have (California)

3. Common Law Protection • Most states recognize the following privacy torts: • Intrusion upon seclusion (K-Mart v. Trotti, 1984) Johnson v. Allen (2005). • Public disclosure of private facts • Placement in a false light - similar to defamation • Appropriation of a name or likeness • Intentional infliction of emotional distress – challenged conduct must truly be “outrageous”.

4. Public Employers • Federal Employees – protections against disclosures under the Privacy Act of 1974 • Federal and state employees have privacy protection against unreasonable searches under the federal Constitution.

5. Privacy Act of 1974 • Provides federal employees limited protection from the dissemination of personal records without the prior written consent of the employee.

6. Public Employers • Public employers need not establish probable cause or obtain warrants before conducting workplace searches. Must be able to defend the “reasonableness” of the search that infringe upon employees’ “expectations of privacy” (O’Connor v. Ortega, 1987). • Must have a work related purpose & not excessive. • Expectation of privacy – key element: existence of a policy or prior notification to employees regarding the limits of their privacy rights. • Employee relations issues -

7. Private Sector: Employer’s Right of Search and Seizure • Employers have a legitimate interest in protecting their own property and that of other employees. • Public sector and private sector standards are similar here: the reasonableness of the search is the key element. • In general, if the employer has probable cause to search the personal property of an employee at the workplace – including the parking lot- the search will be permitted.

8. Procedures for Searches • Start with a Policy – most courts will permit any reasonable search, especially if the employee is warned that it might happen. • Guidelines for Supervisors: • A. Purpose of policy is to protect company and employee interest • B. Searches will be used only when there is legitimate reason to believe that pilferage is taking place. • C. Personal privacy will be respected – conducted in private & by someone of the same sex. NO STRIP SEARCHES. • D. On company time and on company premises. • E. Employer provides all locks used on company property • F. Get a signed statement from each employee acknowledging receipt of the search and seizure policy.

9. Disclosure of Employee Information • Exposure to Liability in Reference Request • Risk include claims for defamation, interference, retaliation, misrepresentation, and breach of duty to warn. • Defamation – when you tell a lie that injures the employee’s reputation (Written – “libel”, or oral – “slander”.)

10. Minimizing the Risk of Giving References • 1. No References • 2. Neutral References • 3. Reliability

11. Substantive References – don’t give them unless you have the employee’s written consent to do so. • Also: get consent through the employer asking for the reference; support comments with specific examples; don’t provide any information that is unrelated to job performance, for example, personal traits or demographic characteristics; don’t offer information about the employee’s protected activity.

12. State Laws: Most states provide varying levels of protection for employers that provide truthful references, false references that are given without an improper motive, or all references. • “Privileges” – qualified, conditional, & absolute – no liability if you provide information in good faith without malice. • Employee evaluations – • Investigation of misconduct in the workplace –

13. Basic Suggestions to Reduce Exposure to Litigation • Put reference policy in writing • Route all request through HR Department • Train supervisors not to give references and when they do, discipline them. • Be aware of fake reference seekers – require all reference request to be in writing. • Don’t say anything in a reference that you wouldn’t say to the former employee’s face. • Consistently apply your policy. • Get signed consent.

14. Monitoring Employee Telephone & E-Mail & Text Messages • Federal Wiretapping Act – unlawful to intercept oral and electronic communications. • Exceptions: • Allows an employer to monitor a firm’s telephones in the “ordinary course of business • Applies where there is prior consent to the interception • Personal calls can be monitored only to the extent necessary to determine that the call is personal. • Electronic Communications Privacy Act (ECPA) amended Wiretapping Act • Applies to E-mail monitoring – employers have broad latitude to monitor employee e-mail. • Stored Communications Act (SCA) – text messages.

15. Monitoring & Surveillance • Video Surveillance – Notice not generally necessary – especially in “public areas”. Should avoid surveillance of “concerted activities” (NLRA). • Surveillance that occurs off the job is more likely to run afoul of privacy law than surveillance in the workplace. • Electronic Communications: Electronic Communications Privacy Act (ECPA). • Provides only limited protection to employees. • Interceptions are legal if prior consent to them was granted. • “Ordinary course of business” exception – may monitor business calls for service quality or other purposes, but not personal calls. • NLRA & concerted activity exception

16. Drug Testing • Drug Abuse – costs employers time and money & puts co-workers and customers at risk. • Studies show: • 75% of people that use illicit drugs are employed • Drug users are one-third less productive • 2.5 times more likely to have absences of 8 days or more • 3.6 times more likely to injure themselves or another person n a workplace accident • 5 times more likely to be injured in an accident off the job

17. Governmental Testing • Most common challenge to governmet testing programs is alleged violation of the 4th Amendment prohibition against unreasonable searches and seizures. • Von Raab case – justified the warrantless, suspicionless drug testing utilized by the Custom Service. • Omnibus Transportation employee Testing Act of 1991 (Testing Act) & DOT regulations – mandates the suspension of at least one year for operators who have driven a commercial motor vehicle while under the influence of drugs; 10 year suspension for 2nd offense. • Private sector employers have wide latitude in testing job applicants for drug use -

18. Drug Testing Policy • Purpose of policy should be clearly stated in order to discourage the use of drugs. • Discharge should be the last resort for violation of the policy. • Surveillance issues – should balance the employee’s privacy rights with the employer’s need to protect property and the safety of others (which usually prevails).

19. Testing Procedures • Prior to testing, employee should be given chance to list any drugs taken in the last month and under what circumstances. • Inform employee as to why the test is necessary. • If the test is positive, suspend pending further testing. • Disclose results on a need to know basis for job-related decisions. • Give employee opportunity to explain or challenge final results before final disciplinary action.

20. Drug-Testing Don’ts • Don’t test without written plan in place. • Don’t use non-certified labs. • Don’t leak results to unauthorized individuals. • Don’t single out employees for testing. • Don’t neglect treatment options. • Don’t think you have a drug testing program by having only cause-based testing. • Don’t neglect random universal testing. • Don’t fear a vocal minority opposed to testing.

21. Record Keeping Issues • “Is it Shredding Time Yet?” • Personnel files • Pre-employment records • Payroll data • Medical records • Record Retention: destroying documents ahead of schedule will suggest an invidious motive to eliminate incriminating evidence. • Sarbanes-Oxley Act –

22. Polygraph Examinations • “Twenty-century witchcraft” – (Sam Ervin). • Last month, Professor David Lykken - behavioral geneticist, emeritus professor at the University of Minnesota and the world's leading expert on polygraphs - died at the age of 78, leaving a lifetime's work of studying polygraphy (which meant, mostly but not entirely, debunking it) behind him. His definitive verdict? "There's something about us Americans that makes us believe in the myth of the lie detector," he said. "It's as much of a myth as the tooth fairy“ (Stephen, 2006). http://www.newstatesman.com/200610160033 • Sam Ervin “20th century witchcraft”.