CONFIDENTIALITY

CONFIDENTIALITY December 2014 “Privacy is not something that I’m merely entitled to, it’s an absolute prerequisite.” - Marlon Brando

Pre-Test: True or False? • We can talk about client issues only if we use their names? • In order to review a client file one must possess a release form signed by the client/guardian? • An employer can ask an employee to divulge his/her disability? • An employer can require an employee to take a lie detector test at any time? • Sharing private personal information about an employee is a “no, no?” • Giving information about a client over the phone is fast and efficient? • We are welcome to inspect client/employee files at any time? • It is permissible to monitor electronic communication of an employee? • It is not permissible to videotape employees while working? • Having staff participate in personality or psychological tests is illegal? • You are required to reveal what your Christmas presents are prior to December 25th?

Learning Objectives • Understand current policies and federal / state privacy laws • Understand potential risks associated with breaching confidentiality • Understand importance of keeping “hush, hush” things on a “need-to-know” basis

Origin of Privacy Laws • “I plead the 5th.” • 5th & 14th Amendments – Right to due process. • Due Process Clause has been basis of much case law regarding privacy rights.

Privacy Act of 1974 • “No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains…” • Four Basic Principles: • Employees should have access to their own personnel files • There should be some mechanism by which an employee may correct or amend an inaccurate record • Employee should be able to prevent information from being inappropriately revealed or used w/o his/her consent, unless such disclosure is required by law • Person in charge of maintaining the information must ensure that the files are not falling into the wrong hands and that information in file is accurate, reliable, and used for the right reasons

Electronic Communications Privacy • "We are rapidly entering the age of no privacy, where everyone is open to surveillance at all times." - William Orville Douglas

Electronic Communications Privacy • Electronic Communications Privacy Act of 1986 • Designed to prevent unauthorized government access to “private” electronic communications • Extended government restrictions on wire taps from telephone calls to include transmissions of electronic data by computer • Exceptions • Party consents for agency to monitor communications • Provider of the communication service can monitor • Monitoring is done in the ordinary course of business

Questions Regarding Electronic Communications • Can my employer listen to my phone calls at work? • Is electronic or voice mail private? • My employer’s electronic mail system has an option for marking messages as “private.” Are those messages protected? • Are my text messages on an employer-provided cell phone private? • What about my employer’s promises regarding email and other workplace privacy issues. Are they legally binding?

Employee Polygraph Protection Act • EPPA of 1988 • Administered by the Wage & Hour Division. • Applies to most private employers. • Law does not cover federal, state, and local governments. • Prohibits most private employers from using lie detector tests, either for pre-employment screening or during the course of employment. • Possible exceptions • Certain job applicants of security service firms and of pharmaceutical manufacturers, distributors, and dispensers. • Certain employees of private firms who are reasonably suspected of involvement in a workplace incident that resulted in specific economic loss or injury to the employer.

HIPAA • Health Insurance Portability & Accountability Act of 1996 • Privacy & Security Rule • Administrative Safeguards • Physical Safeguards • Technical Safeguards

Drug-Free Workplace Act • Drug-Free Workplace Act of 1988 • Authorized the drug testing of federal employees under certain circumstances. • Pre-employment; Periodic; Reasonable cause; Subsequent to any accident • Must post and distribute a policy statement explaining the unlawful manufacture, distribution, dispensation, possession, or use of controlled substances is prohibited. • Discipline is left to employer’s discretion. • DFWA does not apply to private sector employers. • Utah is “pro-employer” state when it comes to drug testing. • Medical & Genetic Testing • Must be job-related and justified by business necessity • Requires that all employees within the same job category be subject to medical examination • HIV / AIDS Testing

Company Policies / Procedures • Acceptable Use Agreement for Electronic Information Resources • Reviewing Personnel / Client Files • Medical / Health Related Information • Drug / Alcohol Testing • Payroll Processes (Pay rates, insurance info, etc) • PAT Procedures (Disciplinary, Appeals, ADA, etc) • Human Rights Committee (Privacy Restrictions) • Investigations (Discrimination, Harassment, etc) • Hiring Practices (Background Checks, I-9, etc) • Exit Interviews / Reference Inquiry

Liability • Negligence • Fraudulent misrepresentation • Discrimination • Invasion of privacy • Intrusion upon seclusion • Appropriation of name or likeness • Publication of private facts • Breach of fiduciary duty • Infliction of emotional distress • Defamation • Breach of Contract

Agencies Involved in Workplace Monitoring National Work Rights Institute 166 Wall Street Princeton, NJ 08540 (609)683-0313 www.workrights.org 9 to 5, the National Association of Working Women 231 West Wisconsin Avenue #900 Milwaukee, WI 53203 (414)274-0925 or (800)522-0925 www.9to5.org Workplace Fairness www.workplacefairness.org Affiliated with the National Employment Lawyers Association: www.nela.org American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004-2400 (212)549-2500 or (800)755-ACLU www.aclu.org

Questions

CONFIDENTIALITY