Ch 12 - Workplace Privacy Flashcards

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1
Q

Basics of Conlaw, state contract,

A
  • Conlaw applies 4th amendment to govt employees.
  • Er and Ee relationship is contract based - breach of promise to protect privacy
  • collective bargaining agreements have privacy provisions - limits on drug testing
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2
Q

Tort law and Ee privacy

A
  • intrusion upon seclusion - egregious (peephole)
  • publicity given to privacy life - egregious and free speech defense available
  • defamation - false drug test eg -
  • state laws add causes of action - eg. can’t ask about filing work comp, and can’t ask for social media pword.

-

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3
Q

Basic overview of federal employment privacy laws

A
  • Federal:
  • Anti-discrimination employment laws limit questions into sensitive areas,
  • protect privacy in certain benefits information (HIPAA, ERISA, FMLA, COBRA), r
  • regulate data collection and record-keeping (FCRA, FLSA, OSHA, Whistleblower Protection Act, NLRA, Immigration Reform and Control Act,

govern specific monitoring practices by employees - covered later

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4
Q

US regulatory bodies that protect employee privacy

A

DOL - administers FLSA, OSHA,and ERISA

EEOC - administers T7 of Civil Rights Act, Age Discrimination in Employment Act, and Titles I and V of ADA.

FTC and CFP - regulate unfair and deceptive trad practices and enforce FCRA

NLRB

State DOLs and

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5
Q

Prior to Employment:ADA and Medical Screenings

A
  • Medical exams and inquiries BEFORE OFFER MADE imited to those that are “job-related and consistent with business necessity.”

Medical exam may be required AFTER OFFER MADE and condition employment on results IF:
(1) all entering employees are subjected to such an examination regardless of disability,

(2) confidentiality rules are followed for the results of the examination and
(3) the results are used only in accordance with the statutory prohibitions against discrimination on the basis of disability.

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6
Q

Asking about reasonable accommodation in hiring

A
  • Pre offer, generall not ask whether need a reasonable acommodation, except if employer already knows they have a disability.
  • After conditional offer, employer may ask as long as all entering employees in same job category are asked as well.
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7
Q

FCRA restrictions on background checks: basics

A
  • CRA providing CR if there is a permissible purpose, which includes pre-employment and promotion/re-assignment/retention as well.

“investigative CR” includes interviews with neighbors, friends, etc. includes reference checks - these also OK if permissible purpose.

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8
Q

To obtain a CRA, employer must meet these criteria

A
  • Provide written notice to the applicant that it is obtaining a consumer report for employment purposes and indicate if an investigative consumer report will be obtained
  • Obtain written consent from the applicant
  • Obtain data only from a qualified consumer reporting agency, an entity that has taken steps to assure the accuracy and currency of the data
  • Certify to the CRA agency that the employer has a permissible purpose and has obtained consent from the employee
  • Before taking an adverse action, such as denial of employment, provide a pre-adverse-action notice to the applicant with a copy of the consumer report, in order to give the applicant an opportunity to dispute the report
  • After taking adverse action, provide an adverse action notice
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9
Q

Distinctives of the California’s ICRAA - Investigative Consumer Reporting Agencies Act

A
  • On the notice and authorization form, employers must enable applicants and employees to check a box to receive a copy of their consumer report any time a background check is conducted.
  • Disclosure to consumers for consent to get investigative CR
    must also include
    the web address where the applicant or employee “may find information about the investigative consumer reporting agency’s privacy practices, including whether the consumer’s personal information will be sent outside the United States or its territories
  • The FCRA allows employers to use the original written consent to get updates to the employee’s credit report as needed. The employer, however, must obtain written consent every time a background check is requested under the ICRAA.
  • FCRA requires that an employer get written consent only if the employer obtains data from a consumer reporting agency. If the employer does the background check itself it does not need to obtain written consent under the FCRA, because it is doing so via public records. The ICRAA requires employers to give the employee or applicant any public records resulting from an in-house background check unless the employee waives that right, while FCRA does not have this provision.
  • if adverse action, under ICRAA employer must give applicant copy of the public records where employer did the check themselves, WHETHER OR NOT APPLICANT OPTED OUT.
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10
Q

Polygraph Testing and the Employee Polygraph Protection Act of 1988

A

The act prohibits employers from requiring or requesting that a prospective or current employee take a lie detector test. Employers cannot use, accept, refer to or inquire about lie detector test results. The act also prohibits employers from taking adverse action against an employee who refuses to take a test.

Exceptions for certain occupations: govt employees, certain security servcies, , those engaged in the manufacture of controlled substances, certain defense contractors and those in certain national security functions. And can be used in investigations of economic loss or injury to employer’s business (embezzlement, eg)

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11
Q

Substance Use Testing

A
  • no federal law
  • 4th amendment applies to public sector workers.
  • ADA excludes current illegal drug use from its protections, and drug test is not an examination.
  • Alcoholism is a disability.
  • Drug history used in employment only very carefully - biz necc.
  • Fed law mandates drug testing for certain positions - customs/border,; regulates it for transportation - RR, trucking, aviation. Pre-empts state law that limits drug testing.
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12
Q

Drug testing settings in the workplace

A

pre-employment generally allowed if not designed to id legal use or addiction to illegal.

reasonable suspicion - allowed as condition of continued employment if reasonable susp.

routine testing - allowed with notification unless state/local law prohibits,

post-accident testing - generally allowed if reas susp substance involved.

random testing - sometimes required by law; generally applicable in occupations where public safety paramount.

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13
Q

Drug testing law in the states

A

CT, IA, MN generally prohibit Ee testing unles reas susp.

State law varies on whether can discharge for failing test.

Litigation in states on common law actions - defamation, negligent testing, invasion of privacy and violation of contract and collective bargaining agreements.

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14
Q

Lifestyle Discrimination and privacy

A
  • private, unless negatively affect others or are criminal.
  • issues of data disclosures, if required, and how to protect sensitive data

Weight
ADA - if 100 lbs overweight, are protected - but details are murky in lower courts
Wellness programs can be issue.

Smoking

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15
Q

Workplace Monitoring - Reasons for monitoring

A
  • Follow workplace safety and other laws that require or encourage monitoring
  • Protect physical security (such as video cameras near entrances) and cybersecurity (such as activity on computer systems)
  • Protect trade secrets
  • Limit liability for unlicensed transmission of copyrighted material and other confidential company information
  • Improve work quality, such as by monitoring service calls with customers
  • Try to keep employees on task rather than spending time on personal business, such as surfing the web
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16
Q

Factors that limit monitoring

A
  • Privacy concern
  • Ethics may prevent.
  • Morale
  • Cost
  • Legal obligation to detect and report misconduct if catch
  • Collective bargaining agreements
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17
Q

The need to establish workplace policies about monitoring

A
  • acceptable use for IT equipment (may be state law required)
    include: when, purpose, to whom disclosed, consequences of violation
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18
Q

Legal obligation or incentives to monitor

A
  • OSHA compliance
  • quality assurance
  • defend against tort claims for negl supervision, or discrim claims, eg. - but high standard in discrim case, so may not be worth the intrusion on privacy if discrim case unlikely to prevail
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19
Q

Video surveillance

A
  • without audio, outside federal wiretap and stored record statutes.
  • federal law generally not apply, but state statutes and common law create limits in some settings - forbidding in restrooms, locker rooms, or “private place.”

Common law tort of invasion of privacy.

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20
Q

intercepting communications

A

unless exception applies, interception of wire(phone or sound from video), oral (hidden bugs/mics) or electronic communications (emai, text) is a criminal offense and is a PROA.

2 exceptions (which often apply in workplace)

1 - if one is party to call or given consent (can be 2 way consent states)
2 - done in ordinary course of business.
(comm services company, eg)

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21
Q

Stored Communications

A
  • Recall Stored Comm. Act creates prohibition ag unauth acquisition, alteration or blocking of e-comms while in storage in facility through which an e-comm service provided - unless by person providing the comm service, or by user if ecomm was from/to them.
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22
Q

Postal mail monitoring

A

If biz reads personal mail incoming to employee can be liable under state torts sometimes - mitigate by advising against receipt of personal mail at work, maintain confid, or just refusing to read.

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23
Q

Location-based services

A
  • can monitor company vehicles for biz purpose
    during work hours and pre-notice
  • monitoring Ee location themselves is harder legally - CA and CT have laws restricting
    CA - can’t use e-tracking device to determin geo-loc
    CT - can’t monitor at all without notice
    common law invasion of privacy claims
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24
Q

Er using social media to monitor

A
  • As of 2017, 25 states have banned Er’s from asking applicants or Ee’s for social media pwords.
  • Er shoudl be careful with “social engineering” - i.e. “the use of manipulation to gain access to otherwise private information.”
  • risk of SM monitoring could lead to discrim based on politics, health, etc.
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25
Q

BYOD - as part of consumerization of IT (COIT_

A
  • Extra security measures
  • Less clear about Er monitoring of own device used for work - expectation of privacy question - company info on the device, but so is personal info, so minimization is key.
  • Discovery can cause trouble as well if data on personal devices.
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26
Q

Data Loss Prevention (DLP)

A

= a strategy to ensure sensitive data is not accessed, misused or lost.

  • combines use of IT security tools, utilization of training, and impl of standards and policies
  • Can go too far in other direction - record every keystroke, “mass surveillance” eg. - so weigh costs and bens
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27
Q

Investigation of Ee misconduct - VAIL letter and FACTA

A
  • Vail letter ruled conduct investigations by outside orgs as CRs (outside org = CRA) , so had to get consent which meant no undercover allowed.

FACTA addressed this problem. If conditions met, Er not need consent or even notice

Conditions/reqs are 3:
1. communication made to employer in conx with investigation of i) suspected misconduct or ii) compliance with law, pre-existing policy, self-regulatory body

  1. comm not made for purposes of credit and does not include that type of info.
  2. comm not provided to anyone other than employer or employer’s agent, governmental person, self regulatory body with authority over, otherwise required by law.

FACTA requires disclosure of the outside ICR summary to Ee, but after concluded.

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28
Q

HR/privacy issues, post employment

A
  • Privacy professionals may also need to consider appropriate practices for maintaining the HR records of former employees.

When an employer is asked to provide references for the former employee, HR, working with legal counsel, should have basic guidelines but collaborate on an appropriate response in more complex circumstances.

Threat of defamation for bad reference, and want to stay on Ee good side in many cases, but on the other hand, state legislatures have responded by passing laws that are designed to encourage accurate reports about former employees

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29
Q

What are the three relevant torts to employee privacy?

A
  1. Intrusion upon seclusion
  2. Publicity given to private life
  3. Defamation
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30
Q

What is intrusion upon seclusion?

A

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

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31
Q

What is publicity given to private life?

A

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person and (b) is not of legitimate concern to the public.

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32
Q

What is defamation?

A

A communication tending “so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.

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33
Q

What federal laws with employment privacy implications regulate benefits related information?

A
  1. HIPAA
  2. COBRA
  3. ERISA
  4. FMLA
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34
Q

What federal laws with employment privacy implications regulate data collection and record keeping?

A
  1. FCRA
  2. FLSA
  3. OSHA
  4. Whistleblower Protection Act
  5. NLRA
  6. IRCA
  7. Securities Exchange Act of 1934
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35
Q

What federal laws with employment privacy implications regulate monitoring practices?

A
  1. Employee Polygraph Protection Act of 1988

2. Wiretap Act, Electronic Communications Privacy Act, and SCA

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36
Q

Which federal agencies protect employee privacy?

A
  1. DOL
  2. EEOC
  3. FTC
  4. CFPB
  5. NLRB
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37
Q

The DOL oversees…

A

The welfare of the job seekers, wage earners, and retirees of the United States by improving their working conditions, advancing their opportunities for profitable employment, protecting their retirement and health care benefits, helping employers find workers, strengthening free collective bargaining, and tracking changes in employment, prices, and other national economic measurements.

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38
Q

The EEOC prevents…

A

discrimination in the workplace.

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39
Q

The FTC and CFPB regulate…

A

unfair and deceptive trade practices.

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40
Q

The NLRB conducts…

A

elections and investigates and remedies unfair labor practices.

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41
Q

What is the ADA?

A

The Americans with Disabilities Act of 1990

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42
Q

What does the ADA do?

A

It created important restrictions on medical screening of candidates before employment. The law forbids employers with 15 or more employees from discriminating against a “qualified individual with a disability because of the disability of such individual,” and specifically covers “medical examinations and inquiries” as grounds for discrimination. Before an offer of employment is made, the ADA permits such examinations and inquiries only where “job related and consistent with business necessity.”

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43
Q

When may a company require a medical examination after an offer of employment, and condition the offer on the results of the examination?

A

If

  1. All entering employees are subjected to such an examination regardless of disability,
  2. Confidentiality rules are followed for the results of the examination, and
  3. The results are used only in accordance with the statutory prohibitions against discrimination on the basis of disability.
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44
Q

The ADA requires an employer to provide what?

A

Reasonable accommodations to qualified individuals who are employees or applicants for employment, unless to do so would cause undue hardship.

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45
Q

Under the FCRA, when can an employer obtain a consumer report or an investigative consumer report?

A

When there is a permissible purpose.

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46
Q

What is a permissible purpose?

A
  1. Preemployment screening for the purpose of evaluating the candidate for employment, and
  2. Determining if an existing employee qualifies for promotion, reassignment or retention.
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47
Q

What is a investigative consumer report?

A

Is a report in which some of the information is acquired through interviews with neighbors, friends, associates or acquaintances of the employee, such as reference checks.

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48
Q

What standards must an employer meet in order to obtain a consumer report?

A
  • Provide written notice to the applicant that it is obtaining a consumer report for employment purposes and indicate if an investigative consumer report will be obtained
  • Obtain written consent from the applicant
  • Obtain data only from a qualified consumer reporting agency, an entity that has taken steps to assure the accuracy and currency of the data
  • Certify to the CRA agency that the employer has a permissible purpose and has obtained consent from the employee
  • Before taking an adverse action, such as denial of employment, provide a pre-adverse-action notice to the applicant with a copy of the consumer report, in order to give the applicant an opportunity to dispute the report
  • After taking adverse action, provide an adverse action notice.
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49
Q

What is the ICRAA?

A

California Investigative Consumer Reporting Agencies Act

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50
Q

What must employers do under the ICRAA?

A
  1. Notify applicants and employees of their intention to obtain and use a consumer report.
  2. Once disclosure is made, the employer must obtain the applicant or employee’s written authorization prior to requesting the report.
  3. On the notice and authorization form, employers must enable applicants and employees to check a box to receive a copy of their consumer report any time a background check is conducted.
  4. If employers wish to take adverse employment action, they must provide the employee with a copy of the report, regardless of whether the employee waived the right to receive a copy.
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51
Q

Does the FCRA preempt states from creating laws in the area of employment credit history checks?

A

No

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52
Q

What does the EPPA do?

A

Prohibits employers from using lie detectors on employees or to screen applicants.

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53
Q

What exceptions are there to the EPPA?

A

The EPPA has exceptions for certain occupations such as government employees, etc.

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54
Q

What are some reasons for monitoring employees in the workplace?

A
  1. Follow workplace safety and other laws that require or encourage monitoring
  2. Protect physical security (such as video cameras near entrances) and cybersecurity (such as activity on computer systems)
  3. Protect trade secrets
  4. Limit liability for unlicensed transmission of copyrighted material and other confidential company information
    Improve work quality, such as by monitoring service calls with customers
  5. Try to keep employees on task rather than spending time on personal business, such as surfing the web
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55
Q

Under the TCPA when is interception of employee communications permitted?

A
  1. If a person is a party to a call or where one of the parties has given consent.
  2. The interception is done in the ordinary course of business.
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56
Q

What is DLP?

A

Data Loss Prevention

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57
Q

Under FACTA, communications related to an employee investigation that are not considered a Consumer Report are:

A
  1. The communication is made to an employer in connection with the investigation of: (1) suspected misconduct related to employment, or (2) compliance with federal, state, or local laws and/or regulations, the rules of a self-regulatory organization, or any preexisting written employment policies
  2. The communication is not made for the purpose of investigating a consumer’s creditworthiness, credit standing or credit capacity and does not include information pertaining to those factors, and
  3. The communication is not provided to any person except: (1) the employer or agent of the employer; (2) a federal or state officer, agency, or department, or an officer, agency, or department of a unit of general local government; (3) a self-regulating organization with authority over the activities of the employer or employee; (4) as otherwise required by law; or (5) pursuant to 15 U.S.C. § 1681f, which addresses disclosures to government agencies.
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58
Q

Under the Fair and Accurate Credit Transactions Act (FACTA), communications related to an employee investigation that are not considered a consumer report are:

A
  1. The communication is made to an employers in connection with the investigation of (a) suspected misconduct related to employment, or (b) compliance with federal, state, or local laws and/ or regulations the rule of a self-regulatory organization, or any preexisting written employment policies
  2. The communication is not made for the purpose of investigating a consumer’s creditworthiness, credit standing or credit capacity and does not include information pertaining to those factors
  3. The communication is not provided to any person except: (a) the employer or agent of the employer; (b) a federal or state officer, agency, or department of a unit of general local government; (c) a self-regulating organization with authority over the activities of the employer or employee; (d) as otherwise required by law; (e) pursuant to 15 USC Sec 168
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59
Q

Under the FCRA, when can an employer obtain a consumer report or an investigative consumer report?

A

When there is a permissible purpose

Permissible purpose:

  1. reemployment screening for the purpose of evaluating the candidate for employment, and
  2. Determining if an existing employee qualifies for promotion, reassignment, or retention
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60
Q

What federal laws with employment privacy implications regulate benefits related information?

A
  1. HIPAA
  2. COBRA
  3. ERISA
  4. FMLA (Family Medical Leave Act)
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61
Q

What is an investigative consumer report?

A

A report in which some of the information is acquired through the interviews with neighbors, friends, associates or acquaintances of the employee, such as reference checks

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62
Q

What federal laws with employment privacy implications regulate data collection and record keeping?

A
  1. FCRA
  2. FLSA
  3. OHSA
  4. Whistleblower Law Protection Act
  5. NLRA
  6. California Investigative Consumer Reporting Act (ICRA)
  7. Securities Exchange Act of 1934
63
Q

The FTC and CFPB regulate . . .

A

unfair and deceptive trade practices

64
Q

Which federal agencies protect employee privacy?

A
  1. DOL
  2. EEOC
  3. FTC
  4. CFPB
  5. NLRB
65
Q

The NLRB conducts . . .

A

elections and investigates and remedies unfair labor practices

66
Q

What must employers do under the ICRAA?

A
  1. Notify applicants and employers of their intention to obtain and use a consumer report
  2. Once disclosure is made, the employer must obtain the applicant or employee’s written authorization prior to requesting the report
  3. On the notice and authorization form, employers must enable applicants and employees to check a box to receive a copy of their consumer report at any time a background check is conducted
  4. If employers wish to take adverse employment action, they must provide the employee with a copy of the report, regardless of whether the employee waived the right to receive a copy
67
Q

What are some reasons for monitoring the workplace?

A
  1. Follow workplace safety and other laws that require or encourage monitoring
  2. Protect physical security (such as video cameras near entrances) and cybersecurity (such as activity on computer systems)
  3. Protect trade secrets
  4. Limit liability for unlicensed transmission of copyrighted material and other confidential company information
  5. Try to keep employees on task rather than spending time on personal business, such as surfing the web
68
Q

What are the roles and responsibilities of the Federal Communications Commission (FCC)?

A

Places significant compliance regulations on and governs the communications industry, such as television, radio, and telemarketing and more recently, with recently with online marketing developing such as laws as the Telemarketing Sales Rule and Controlling the Assault of Non-solicited Pornography and Marketing Act (CAN-SPAM)

Along with the FTC, the FCC, the FCC also enforces privacy laws

69
Q

Under the TCPA when is interception of employee communications permitted?

A
  1. If a person is a party to a call or where one of the parties has given consent
  2. The interception is done in the ordinary course of business
70
Q

What standards must an employer meet in order to obtain a consumer report?

A
  1. Provide written notice to the applicant that is obtaining a consumer report for employment purposes will be obtained
  2. Obtain written consent from the applicant
  3. Obtain Datta only from a qualified consumer reporting agency, an entity that has taken steps to assure the accuracy and currency of the data
  4. Certify to the CRA agency that the employer has a permissible purpose and has obtained consent from the employee
  5. Before taking an adverse action, such as denial of employment, provide a pre-adverse action notice to the applicant with a copy of the consumer report, in order to give the applicant an opportunity to dispute the report
  6. After taking adverse action, provide an adverse action notice
71
Q

What federal laws with employment privacy implications regulate monitoring practices?

A
  1. Employee Polygraph Protection of 1988
  2. Wiretap Act
  3. Electronic Communications Privacy
  4. SCA
72
Q

What are the three relevant torts to employee privacy?

A
  1. Intrusion upon seclusion
  2. Publicity given to private life
  3. Defamation
73
Q

The EEOC prevents

A

Discrimination in the workplace

74
Q

Intrusion upon seclusion

A

One who intentionally intrudes, physically, or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy if the intrusion would be highly offensive to a reasonable person

75
Q

What exceptions are there to the EPPA?

A

The EPPA has exceptions for certain occupations such as government employees. etc.

76
Q

Does the FCRA preempt states from creating laws in the area of employment credit history checks?

A

No

77
Q

When may a company require a medical examination after an offer of employment, and condition the offer on the result of the examination?

A

If:

  1. All entering employees are subject to such an examination regardless of disability
  2. Confidentiality rules are followed for the results of the examination
  3. The results are used only in accordance with the statutory prohibitions against discrimination on the basis of disability
78
Q

Workplace Privacy Concepts

A

Governed by a patchwork of federal, state, and local laws and regulations

79
Q

What role does Human Resource Management play in workplace privacy?

A

Must balance the needs of the business with employee privacy obligations.

  1. Before employment – interviews and employee background screening
  2. During employment – employee monitoring and working with labor unions
  3. After employment – employee misconduct investigations and terminations
80
Q

FTC Role in Workplace Privacy

A

Regulates unfair and deceptive trade practices. CFPB regulate unfair and deceptive practices and the use of credit reports.

81
Q

DoL role in Workplace Privacy?

A

Most directly responsible for employment matters. Oversees the welfare of job seekers, wage earners, and retirees of the US by improving their working conditions, advancing their opportunities for profitable employment, protecting their retirement and healthcare benefit, helping employers find workers, strengthening free collective bargaining, and tracking changes in employment, prices, and other national economic measurements

82
Q

What workplace privacy laws are overseen by the DoL?

A
o	FLSA
o	OSHA
o	ERISA
o	EPPA
o	FMLA
83
Q

Equal Employment Opportunity Commission (EEOC)

A

Prevents discrimination in the workplace. Enforces prohibitions on employment discrimination.

84
Q

National Labor Relations Board (NLRB)

A

Conducts elections and investigates and remedies unfair labor practices. Regulates the rights of workers to organize in labor unions.

85
Q

Securities and Exchange Commission (SEC)

A

Requires reporting of HR information by publicly traded companies.

86
Q

U.S. Anti-Discrimination Laws

A
  1. Title VII Civil Rights Act of 1964
  2. Americans with Disabilities Act
  3. Genetic Information Discrimination Act
  4. Other federal laws protect against discrimination based upon age, pregnancy, bankruptcy, and other characteristics
87
Q

Title VII Civil Rights Act of 1964

A

Outlawed discrimination based on race, color, religion, sex, or national origin

88
Q

Americans with Disabilities Act (ADA)

A

Bars discrimination against qualified individuals with disabilities.

89
Q

Genetic Information Nondiscrimination Act (GINA)

A

Prohibits the use of genetic information in employment decisions

90
Q

FCRA Employee Background Screening Requirements

A

Created a national rule for how information is gathered and used pre-employment. FCRA prohibits obtaining a consumer report unless a “permissible purpose” exists. However, permissible purposes include “employment purposes” which in turn include (1) preemployment screening for the purpose of evaluating the candidate for employment and (2) determining if an existing employee qualifies for promotion, reassignment, or retention. FCRA also permits employers to obtain an “investigative consumer report” on the applicant if a permissible purpose exists.

91
Q

To obtain any consumer report under FCRA, an employee must meet the following standards:

A

o Provide written notice to the applicant that is obtaining a consumer report for employment purposes and indicate if an investigative consumer report will be obtained
o Obtain written consent from the applicant
o Obtain data only from a qualified consumer reporting agency, an entity that has taken steps to assure the accuracy and currency of the data
o Certify to the consumer reporting agency that the employer has a permissible purpose and has obtained consent from the employee
o Before taking an adverse action, such as denial of employment - provide a pre-adverse action notice to the applicant with a copy of the consumer report, in order to give the applicant an opportunity to dispute the report with a summary of their rights
o After taking adverse action, provide an adverse action notice
2. Retain records for one year under most circumstances. FTC requires secure disposal of records when they are no longer needed.

92
Q

Adverse Action Notices

A
  1. Adverse action was taken based on background information
  2. Contact information for company providing the report
  3. Disclosure that the company providing the report did not take the adverse action
  4. Notice of the right to dispute the report
93
Q

Personality and psychological evaluations

A

Personality screening must be done in a way that avoids violating the ADA. Employee Polygraph Protection Act (EPPA) prohibits the use of lie detectors in most employment settings. EPPA and ADA put significant restrictions of psychological examinations in the workplace. Employers must comply with rules limiting lie detectors as well as the ADA prohibitions on the use of medical tests, including those designed to test an impairment of mental health. Employers continue to use psychological tests measuring personality traits such as honesty, preferences and habits in hiring and employments, although one expert report that such tests may be concentrated in specific positions such as management and sales.

94
Q

Polygraph testing

A

Employee Polygraph Protection Act of 1988 (EPPA) issued by the DOL, employers are prohibited from using “lie detectors” on incumbent workers or to screen applicants. A “lie detector” is defined to include polygraphs, voice stress analyzers, psychological stress evaluators, or any similar device used for the purpose of rendering a diagnostic opinion regarding an individual’s honesty. The law prohibits employers to use these tests, utilize results of these tests, or take adverse action due to knowledge of these tests.

95
Q

Drug & Alcohol Testing

A

There are no federal statute that directly governs employer testing of employees for substances such as illegal drugs or alcohol or tobacco. Drug testing may be used in a variety of settings:
o Preemployment – generally allowed if not designed to identify legal use of drugs or addiction to illegal drugs (ADA restrictions)
o 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)
o Routine testing – generally allowed if the employees are notified at the time of hire unless state or local law prohibits it
o 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
o Random testing – sometimes required by law, prohibited in certain jurisdictions, but acceptance where used on existing employees in specific, narrowly defined jobs, such as those in highly regulated industries where the employee has a severely diminished expectation of privacy, or where testing is critical to public safety or national security.

96
Q

Social Media

A

Use information obtained from social media accounts carefully to avoid taking discriminatory action. Employers are generally legally permitted to use social media in informing their decisions, they must not violate existing anti-discrimination and privacy laws. Invasive monitoring practices may provide the basis for discrimination lawsuits if the employer accesses and appears to use information that is legally protected.

97
Q

Employee Monitoring Technologies

A

Employees in the private sector do not have privacy expectations within the workplace (except for restrooms and private areas)

98
Q

Employee Monitoring - Computer usage (including social media)

A

Monitoring employee computer use is generally permissible.

99
Q

Employee monitoring - biometrics

A

The use of biometric information is regulated in Illinois, Texas, and Washington have laws requiring different levels of notice, consent, and security regarding biometric information

100
Q

Employee monitoring - location-based services (LBS)

A

Social media may be used to an employer’s advantage for brand awareness but monitoring employees. Monitoring using location-based services may be regulated by state law

101
Q

Employee monitoring - social media

A

Employers may monitor employee social media accounts but should not request passwords to personal accounts.

102
Q

Employee monitoring - e-ail and postal mail

A

Business may open mail sent to a business address. US federal law generally prohibits interference with mail delivery. Employers can mitigate this risk by advising employees not to receive personal mail at work, declining to read mail once it is clear that it is personal in nature, and maintaining confidentiality for any personal information obtained in the course of monitoring

103
Q

Requirements under the Electronic Communications Privacy Act of 1986 (ECPA)

A

prohibits the “interception of electronic communications.” Most of the activities an employee engages in while connected to a network (e.g., web traffic, e-mail and instant messenger sessions) qualify as electronic communications for these purposes. Interception means acquiring the contents of such communication during transmission, and “contents,” in turn, is defined to include “any information concerning the substance, purpose, or meaning of that communication.” This means that the ECPA does not prohibit the mere collection of information about the activities engaged in by an employee online (e.g., the time spent online, or the volume of data transferred). Rather, it protects the secrecy of the actual data transmitted to and from an employee’s workstation (e.g., the actual appearance of Web sites visited, form data submitted, subject lines and bodies of e-mails sent and received and transcripts of chat sessions, etc.)

104
Q

Stored Communications Act

A

Most employers choose to obtain explicit consent for employee monitoring

105
Q

Unionized worker issues concerning monitoring in the US workplace

A

Video surveillance in the workplace must be addressed in union collective bargaining agreements.
1. Employers may not interfere with union organizing activities. Prohibited practices:
o Spying on union activities
o Creating the impression of spying on union activities
o Photographing or videotaping employees engaged in union activities

106
Q

Data handling in misconduct investigations

A

Employers should be aware of various issues when investigating an employee’s misconduct.

  1. Avoid jeopardizing the integrity of the investigation
  2. Protect information about individuals who are not the target
  3. Avoid unwarranted reputational damage
  4. Abide by union collective bargaining agreements
107
Q

Use of third parties in investigations

A

When employers use third parties, they may expose themselves to liability under FCRA. FCRA generally requires notice and employee consent when the employer obtains a consumer report. According to an opinion letter issued to the FTC known as the “Vail Letter” if an employer hired an outside organization such as a PI or background research firm to conduct these investigations, the outside organization constituted a “consumer reporting agency” under FCRA.

108
Q

FACTA changes to FCRA

A

FACTA changed the definition of “consumer report” under FCRA to exclude communications relating to employee investigations from the definition if three requirements are met:
o The communication is made to an employer in connection with the investigation of: (i) suspected misconduct related to employment, or (ii) compliance with federal state, or local laws and/or regulations, the rules of self-regulatory organization, or any pre-existing written employment policies;
o The communication is not made for the purpose of investigating a consumer’s creditworthiness, credit standing, or credit capacity and does not include information pertaining to those facts; and,
o The communication is not provided to any person except: (i) the employer or agent of the employer, (ii) a federal or state officer, agency, or department, or an officer agency, or department of a unit of general local government, (iii) a self-regulating organization with authority over the activities of the employer or employee, (iv) as otherwise required by law, or (v) pursuant to 15 U.S.C. 1681f, which addresses disclosures to government agencies

109
Q

Documenting performance problems

A
  1. Must be provided to the recipient of adverse action
  2. Must include the nature and substance of the report
  3. May exclude witness names
  4. Must only be shared within the organization or otherwise required by law
110
Q

Termination of the employment relationship

A

Departure of employees is a predictable event; IT systems should be designed to minimize the disruption to the company and other employees when a person no longer as authorized access.

111
Q

Exit Interviews

A

Provide a chance to debrief departing employees. Use exit interview to remind employees of their NDA.

112
Q

Transition Management

A

Basic steps to transition when an employee leaves includes:

  1. Secure the return of badges, keys, smartcards and other methods of physical access
  2. Disable access for computer accounts
  3. Ensure the return of laptops, smartphones, storage drives, and other devices that may store company information
  4. Seek, where possible, to have the employee return any company data that is held by the employee outside of the company’s systems
  5. Remind employees of their obligations not to use company data for other purposes
  6. Clearly marked personal mail, if any, should be forwarded to the former employee, but work-related mail should be reviewed to ensure that proprietary company is not leaked.
113
Q

Records retention

A

retain employee records in accordance with records retention policies.

114
Q

References

A

Common law poses no duty on a former employer to supply a reference for a former employee, but some modern state statutes do require references for specific occupations. The common law provides what is known as a “qualified privilege” for employers to report their experience with and impressions of the employee, to help in defense against defamation suits. Adopt standard practices for handling reference requests (should be consistent and comply with legal and regulatory requirements)

115
Q

What are the three relevant torts to employee privacy?

A
  1. Intrusion upon seclusion
  2. Publicity given to private life
  3. Defamation
116
Q

What is intrusion upon seclusion?

A

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

117
Q

What is publicity given to private life?

A

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person and (b) is not of legitimate concern to the public.

118
Q

What is defamation?

A

A communication tending “so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.

119
Q

What federal laws with employment privacy implications regulate benefits related information?

A
  1. HIPAA
  2. COBRA
  3. ERISA
  4. FMLA
120
Q

What federal laws with employment privacy implications regulate data collection and record keeping?

A
  1. FCRA
  2. FLSA
  3. OSHA
  4. Whistleblower Protection Act
  5. NLRA
  6. IRCA
  7. Securities Exchange Act of 1934
121
Q

What federal laws with employment privacy implications regulate monitoring practices?

A
  1. Employee Polygraph Protection Act of 1988

2. Wiretap Act, Electronic Communications Privacy Act, and SCA

122
Q

Which federal agencies protect employee privacy?

A
  1. DOL
  2. EEOC
  3. FTC
  4. CFPB
  5. NLRB
123
Q

The DOL oversees…

A

The welfare of the job seekers, wage earners, and retirees of the United States by improving their working conditions, advancing their opportunities for profitable employment, protecting their retirement and health care benefits, helping employers find workers, strengthening free collective bargaining, and tracking changes in employment, prices, and other national economic measurements.

124
Q

The EEOC prevents…

A

discrimination in the workplace.

125
Q

The FTC and CFPB regulate…

A

unfair and deceptive trade practices.

126
Q

The NLRB conducts…

A

elections and investigates and remedies unfair labor practices.

127
Q

What is the ADA?

A

The Americans with Disabilities Act of 1990

128
Q

What does the ADA do?

A

It created important restrictions on medical screening of candidates before employment. The law forbids employers with 15 or more employees from discriminating against a “qualified individual with a disability because of the disability of such individual,” and specifically covers “medical examinations and inquiries” as grounds for discrimination. Before an offer of employment is made, the ADA permits such examinations and inquiries only where “job related and consistent with business necessity.”

129
Q

When may a company require a medical examination after an offer of employment, and condition the offer on the results of the examination?

A

If

  1. All entering employees are subjected to such an examination regardless of disability,
  2. Confidentiality rules are followed for the results of the examination, and
  3. The results are used only in accordance with the statutory prohibitions against discrimination on the basis of disability.
130
Q

The ADA requires an employer to provide what?

A

Reasonable accommodations to qualified individuals who are employees or applicants for employment, unless to do so would cause undue hardship.

131
Q

Under the FCRA, when can an employer obtain a consumer report or an investigative consumer report?

A

When there is a permissible purpose.

132
Q

What is a permissible purpose?

A
  1. Preemployment screening for the purpose of evaluating the candidate for employment, and
  2. Determining if an existing employee qualifies for promotion, reassignment or retention.
133
Q

What is a investigative consumer report?

A

Is a report in which some of the information is acquired through interviews with neighbors, friends, associates or acquaintances of the employee, such as reference checks.

134
Q

What standards must an employer meet in order to obtain a consumer report?

A
  • Provide written notice to the applicant that it is obtaining a consumer report for employment purposes and indicate if an investigative consumer report will be obtained
  • Obtain written consent from the applicant
  • Obtain data only from a qualified consumer reporting agency, an entity that has taken steps to assure the accuracy and currency of the data
  • Certify to the CRA agency that the employer has a permissible purpose and has obtained consent from the employee
  • Before taking an adverse action, such as denial of employment, provide a pre-adverse-action notice to the applicant with a copy of the consumer report, in order to give the applicant an opportunity to dispute the report
  • After taking adverse action, provide an adverse action notice.
135
Q

What is the ICRAA?

A

California Investigative Consumer Reporting Agencies Act

136
Q

What must employers do under the ICRAA?

A
  1. Notify applicants and employees of their intention to obtain and use a consumer report.
  2. Once disclosure is made, the employer must obtain the applicant or employee’s written authorization prior to requesting the report.
  3. On the notice and authorization form, employers must enable applicants and employees to check a box to receive a copy of their consumer report any time a background check is conducted.
  4. If employers wish to take adverse employment action, they must provide the employee with a copy of the report, regardless of whether the employee waived the right to receive a copy.
137
Q

Does the FCRA preempt states from creating laws in the area of employment credit history checks?

A

No

138
Q

What does the EPPA do?

A

Prohibits employers from using lie detectors on employees or to screen applicants.

139
Q

What exceptions are there to the EPPA?

A

The EPPA has exceptions for certain occupations such as government employees, etc.

140
Q

What are some reasons for monitoring employees in the workplace?

A
  1. Follow workplace safety and other laws that require or encourage monitoring
  2. Protect physical security (such as video cameras near entrances) and cybersecurity (such as activity on computer systems)
  3. Protect trade secrets
  4. Limit liability for unlicensed transmission of copyrighted material and other confidential company information
    Improve work quality, such as by monitoring service calls with customers
  5. Try to keep employees on task rather than spending time on personal business, such as surfing the web
141
Q

Under the TCPA when is interception of employee communications permitted?

A
  1. If a person is a party to a call or where one of the parties has given consent.
  2. The interception is done in the ordinary course of business.
142
Q

What is DLP?

A

Data Loss Prevention

143
Q

Under FACTA, communications related to an employee investigation that are not considered a Consumer Report are:

A
  1. The communication is made to an employer in connection with the investigation of: (1) suspected misconduct related to employment, or (2) compliance with federal, state, or local laws and/or regulations, the rules of a self-regulatory organization, or any preexisting written employment policies
  2. The communication is not made for the purpose of investigating a consumer’s creditworthiness, credit standing or credit capacity and does not include information pertaining to those factors, and
  3. The communication is not provided to any person except: (1) the employer or agent of the employer; (2) a federal or state officer, agency, or department, or an officer, agency, or department of a unit of general local government; (3) a self-regulating organization with authority over the activities of the employer or employee; (4) as otherwise required by law; or (5) pursuant to 15 U.S.C. § 1681f, which addresses disclosures to government agencies.
144
Q

Federal law mandates substance use testing for certain positions.

True/False

A

True

145
Q

What are the advantages and disadvantages of BYOD programs in the workplace?

A

Advantages:
• Same home/work technology
• More flexibility • Efficiency and productivity
• Employer increased accessibility to employee

  • Disadvantages:
  • Lack of employer control
  • Exposure of organization to security vulnerabilities and threats
146
Q

In addition to the Americans with Disabilities Act, which federal laws* prohibit discrimination in the workplace?

A

Title VII of the Civil Rights Act of 1964 bars discrimination in employment due to race, color, religion, sex and national origin
• The Equal Pay Act of 1963 bars wage disparity based on sex
• The Age Discrimination Act bars discrimination against individuals over 40
• The Discrimination Act bars discrimination due to pregnancy, childbirth and related medical conditions
• The Americans with Disabilities Act of 1990 bars discrimination against qualified individuals with disabilities
• The Genetic Information Nondiscrimination Act of 2008 bars discrimination based on individuals’ genetic information
• The Bankruptcy Act provision 11 U.S.C. § 525(b) prohibits employment discrimination against persons who have filed for bankruptcy
• Some ambiguity on whether the statute applies to discrimination prior to the extension of an offer of employment; courts have read the statute both ways

147
Q

What does workforce training on privacy establish?

A

Increase the level of knowledge of staff, decreasing the chance of non-compliance

148
Q

Is there an overarching employment privacy law in the U.S.?

A

EXAMPLE ANSWER: There is no overarching law for employment privacy.

  • Some constitutional, federal, state, tort and statutory laws impact privacy
  • Contracts between employer and employee may impact privacy agreements
  • There is considerable local variation and complexity on employment privacy issues
  • Many U.S. labor laws mandate employee data collection and management practices, such as conducting background checks and ensuring and documenting a safe workplace environment
  • Organizations also have incentives to gather information about employees and monitor the workplace to reduce the risk of being sued for negligent hiring or supervision
149
Q

Employee privacy is protected by several federal agencies, including :

A

1) the U.S. Department of Labor (DOL)
2) the Equal Employment Opportunity Commission (EEOC)
3) the Federal Trade Commission (FTC)
4) the Consumer Financial Protection Bureau (CFPB)
5) and the National Labor Relations Board (NLRB).

150
Q

The mission of the DOL is “to foster, promote, and develop the welfare of the wage earners, job seekers, and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and assure work-related benefits and rights.
To achieve this mission, the department administers a variety of federal laws like:

A

1) FLSA
2) OSHA and
3) ERISA.

151
Q

The EEOC works to prevent discrimination in the workplace. The EEOC oversees many laws, including:

A

1) Title VII of the Civil Rights Act,
2) the Age Discrimination in Employment Act of 1967 (ADEA), and
3) Titles I and V of the Americans with Disabilities Act of 1990 (ADA).

152
Q

To obtain any consumer report under FCRA, an employer must meet the following standards:

A

Provide written notice to the applicant that it is obtaining a consumer report for employment purposes and indicate if an investigative consumer report will be obtained
Obtain written consent from the applicant
1) Obtain data only from a qualified consumer reporting agency, an entity that has taken steps to assure the accuracy and currency of the data
2) Certify to the CRA agency that the employer has a permissible purpose and has obtained consent from the employee
3) Before taking an adverse action, such as denial of employment, provide a pre-adverse-action notice to the applicant with a copy of the consumer report, in order to give the applicant an opportunity to dispute the report
4) After taking adverse action, provide an adverse action notice
5) If employers do not comply with these requirements, they may face civil and criminal penalties, including a private right of action.”

153
Q

Both the FTC and the CFPB regulate unfair and deceptive practices and enforce a variety of laws, including the FCRA, which limits ________’ ability to receive an employee’s or applicant’s credit ”

A

employers