Chapter 11 - Workplace Privacy Flashcards
Basics of Conlaw, state contract,
- 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
Tort law and Ee privacy
- 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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Basic overview of federal employment privacy laws
- 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
US regulatory bodies that protect employee privacy
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
Prior to Employment:ADA and Medical Screenings
- 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.
Asking about reasonable accommodation in hiring
- 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.
FCRA restrictions on background checks: basics
- 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.
To obtain a CRA, employer must meet these criteria
- 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
Distinctives of the California’s ICRAA - Investigative Consumer Reporting Agencies Act
- 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.
Polygraph Testing and the Employee Polygraph Protection Act of 1988
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)
Substance Use Testing
- 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.
Drug testing settings in the workplace
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.
Drug testing law in the states
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.
Lifestyle Discrimination and privacy
- 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
Workplace Monitoring - Reasons for monitoring
- 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
