Chapter 11: Workplace Privacy

Question 1

What are the three relevant torts to employee privacy?

Answer 1

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

Question 2

What is intrusion upon seclusion?

Answer 2

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.

Question 3

What is publicity given to private life?

Answer 3

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.

Question 4

What is defamation?

Answer 4

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.

Question 5

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

Answer 5

1. HIPAA
2. COBRA
3. ERISA
4. FMLA

Question 6

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

Answer 6

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

Question 7

What federal laws with employment privacy implications regulate monitoring practices?

Answer 7

1. Employee Polygraph Protection Act of 1988

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

Question 8

Which federal agencies protect employee privacy?

Answer 8

1. DOL
2. EEOC
3. FTC
4. CFPB
5. NLRB

Question 9

The DOL oversees…

Answer 9

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.

Question 10

The EEOC prevents…

Answer 10

discrimination in the workplace.

Question 11

The FTC and CFPB regulate…

Answer 11

unfair and deceptive trade practices.

Question 12

The NLRB conducts…

Answer 12

elections and investigates and remedies unfair labor practices.

Question 13

What is the ADA?

Answer 13

The Americans with Disabilities Act of 1990

Question 14

What does the ADA do?

Answer 14

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.”

Question 15

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

Answer 15

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.

Question 16

The ADA requires an employer to provide what?

Answer 16

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

Question 17

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

Answer 17

When there is a permissible purpose.

Question 18

What is a permissible purpose?

Answer 18

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.

Question 19

What is a investigative consumer report?

Answer 19

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.

Question 20

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

Answer 20

• 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.

Question 21

What is the ICRAA?

Answer 21

California Investigative Consumer Reporting Agencies Act

Question 22

What must employers do under the ICRAA?

Answer 22

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.

Question 23

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

Answer 23

No

Question 24

What does the EPPA do?

Answer 24

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

Question 25

What exceptions are there to the EPPA?

Answer 25

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

Question 26

What are some reasons for monitoring employees in the workplace?

Answer 26

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

Question 27

Under the TCPA when is interception of employee communications permitted?

Answer 27

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.

Question 28

What is DLP?

Answer 28

Data Loss Prevention

Question 29

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

Answer 29

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.