Privacy and the Employer’s Right to Know

1. Privacy and the Employer’s Right to Know • Issues: • Record Keeping • Search and Seizure • Disclosure of Employee Information • Exposure for Defamation

2. Record Keeping • Key Questions: • Who’s Property? • How do you define? • Legal Requirements to retain? • Audit Procedures?

3. 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.

4. 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. • 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.

5. 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”.)

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

7. 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.

8. 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 and absolute – no liability if you provide information in good faith without malice.

9. 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.

10. 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

11. 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).

12. 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.

13. 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.