class 11 - whistleblowing and privacy Flashcards
privacy
Emploeyers may want to employee’s activities on their computer or their desks but the employee may see this as invasive
The chapter will focus on several key privacy issues, including the following:
- Do you have a right to check on the websites employees are visiting?
- How far can you go in monitoring an employee’s on-the-job communications, such as phone conversations and email, when the employee is working on-site or remotely?
- What are the legal limits on your use of cameras, recorders, and computer productivity software?
- When can you safely search an employee’s possessions or work area?
- Can you dictate what employees can and cannot do on their own time?
You cana void worker resentment and legal entanglements by obsereving two key principles:
- First, make sure to do only what’s necessary for your business purposes
-Second, do your best to reduce employee’s expectations of privacy in the workplace
Let employees know in advance that your company reserves the right to read email messages sent on company equipment etc.
Privacy Cont.
Overcoming an employee’s privacy expectations may not be all that hard:
- You can notify employees if you plan to monitor their activities
- To build a stronger defense, you can get each employee’s express consent
- You can provide a written statement for employees to sign, acknowledging your policies and practices and consenting to your monitoring
- Another method is to include your policies and practices in an employee handbook and then require the employee to sign a receipt acknowledging that the employee has received the handbook and consents to the policies
- With express written consent, you don’t have the potential problem of proving in court that the emploeye did recieve notice of your monitoring activiites
- Notice and consent will only go so far though
–> Some states have outlawed speicific practices like video cameras in restrooms
Monitoring employees at work
Keeping tabs on what employees are doing at work is a legitimate interest for employers
It gives you an objective way to evaluate job performance
It can help you detect theft, thwart disclosure of confidential information, prevent discrimination and harassment and prevent msiuse of company equipment
The law gives considerable latitude to monitor employees but not a complete free hand
Internet use
Accordingly, it’s prudent to take the following precautions:
- Adopt a policy saying that employees are to use your computers only for business matters during their work hours.
- Inform employees of this policy and also tell them that you’re installing software that will show what websites they’re visiting.
- Let them know that they can be disciplined or fired for using your computers for personal matters during their work hours.
- Have employees acknowledge in writing that they’ve received notice of your policy and of the fact that you use web-tracking software.
Even if you don’t isntall web-tracking software, you may still want to have a policy prohibiting using the itnernet for inappropriate purposes
Phone calls
There are a number of good business reasons for monitoring calls:
- For example, to ensure good service, to discourage use of personal use of phones during work, to make sure they aren’t violating law or engaging in harassment/discrimination
- Monitoring phone calls can help you detect the disclosure of trade secrets and confidental information
If you decide to monitor phone calls you must follow some legal rules
Mobile devices pose additional privacy questions - BYOD
Mobile devices pose additional privacy questions - BYOD:
- There are many drawbacks from having employees use their own personal technology
– What happens if the device gets stolen? Will this let competitors gain access to confidential information?
– Personal information stored in the phone as well as company information can create the risk that your access to business files may expose you to the employee’s personal information
– Reimbursement of expense is alsoa concern
- To avoid problems with using personal phones it is best to establish a clear written policy that you may need access to the devices and that personal ifnormation may be revealed in the process
Under two federal laws—the Omnibus Crime Control and Safe Streets Act of 1968 and the Electronic Communications Privacy Act (ECPA)—you can monitor phones calls if either of the following is true:
- Your monitoring is in the ordinary course of your business.
- You have the employee’s consent. This section discusses federal law requirements. Your state’s law might also add a twist
Ordinary course of business
- Though federal law authorizes you to monitor phone calls in the ordinary course of business, it doesn;t say what that is
- It is clear that this applies if employees use your phones as an inextricable part of your business and if you listen in to make sure the employees are serving your customers well
EX: you have a telemarketing operation, monitoring will be allowed - Also applies if you wnat to check up on an employee who you think is giving trade secrets to a competitor or using the phone to make personal calls
- No matter what, however, ordinary course of business applies only to business calls. If you happen to monitor a personal call, you must stop listening as soon as you determine that it is personal.
Consent
The second way to monitor phone calls is to obtain employee consent
It can either be implied or expressed
If you notify employees that you’ll be monitoring their phone calls, they’ve given their implied consent if they continue to use the phone
You can give this notice in an employee habdbook or through prominent posters in the worker area
Although implied consent is legally sufficient to permit monitoring under the federal law, you may have trouble later on proving that you actually gave the notice. For that reason, you’ll make your life easier by getting each employee’s written consent.
Several states impose additional requirements on monitoring phone calls
- Primarily, they require the consent of both parties to the call, typically by a beep that both aprties can hear or a message notifying both parties of the monitoring
- It is uniformly found that employers have a right to monitor emails as long as they have a clear policy reserving the right to do so
- Such a policy is a good idea for many rasons: even if you don’t particulary want (or feel you need) to read employee email, there may come a day when you need to
- Some companies don’t want employees to use the compan’y email system for personal messages of any kind.. So why not just ban personal use altogether?
– The biggest reason is that a ban on personal use of company email is likely to ve violated often
– Employees can point to many other employees who were not punished for the same behavior - Consider limiting personal use to occasional messages sent during nonwork hours instead
Monitoring performance and workplace behavior
There are legitimate business reasons to install video cameras in the workplace - safety, theft etc.
You’re generally fre to use video cameras for such purposes, though it’s always a good idea to notify employees this is your policy
An employee who continues to work for you after gettign such a notice has given implied consent for monitoring
Some states forbid the use of electronic surveillance
Monitoring conversations through microphones– either separately or in connection with video c
searches
- If you want to be able to search such property without risking severe legal consequences, you must do your best to eliminate the expectation of privacy.
Consider taking the following precautions:
- Adopt a written policy that lets employees know which of the company’s property—and which of their own—may be subject to searches
- Specifically address workplace facilities—such as desks, lockers, and cabinets—that employees might expect to be private. And, if you anticipate more extensive searches, also address such items as handbags, briefcases, and parcels.
- Make sure that employees are well informed of your policy. (Ideally, you’d like employees to sign an acknowledgment that they’ve received a copy of the policy and agree to be bound by it.) When you let employees know that you may be searching certain property, it’s hard for them to later contend that they reasonably expected privacy.
- If you give an employee a key to a desk or locker but retain a master key, make sure the employee knows. Without that knowledge, the employee may have a higher expectation of privacy. If you allow employees to use their own locks, require them to give you the combination or a duplicate key.
- Apply your search policy consistently to all employees.
- Limit any searches, if you can, to company-owned property; try not to search the employees’ personal property.
- Have a good business reason for any search you conduct (for example, to look for stolen property or controlled substances)
Off-duty activities
off-duty activities:
- You can see why sucha practice might meet with employee resistance
- However, certain employee activities may affect your business
- In some states, these laws are limited to an employee’s use of legal products; generally, these laws are intended to protect employees who smoke tobacco products or use legal marijuana.
– The legal activities law in New York specifies four types of off-duty activities that an employer can’t act on:
–> political activities, such as fundraising or running for office
–> legal use of consumable products, which covers marijuana, cigarettes, alcohol, and prescription drugs
legal recreational activities, or
union activities
The following guidelines should protect you from potential liability and perhaps even from worker resentment:
- Let employees know in advance what kinds of off-duty conduct will get them into trouble.
- Apply your rules in an even-handed way to all employees.
- Don’t apply your off-duty rules in a way that violates—or appears to violate—the antidiscrimination laws. For example, don’t fire someone for conduct that may look like it has a religious, racial, or gender component.
- Don’t use off-duty rules as a subterfuge for engaging in illegal discrimination.
- If possible, warn an employee before you resort to discipline or firing for off-duty conduct
Article: whistleblower notice
Who is protected?
–> Pursuant to California Labor Code Section 1102.5, employees are the protected class of individuals. “Employee” means any person employed by an employer, private or public, including, but not limited to, individuals employed by the state or any subdivision thereof, any county, city, city a nd county, including any charter city or county, and any school district, community college district, municipal or public corporation, political subdivision, or the University of California. [California Labor Code Section 1106]
What is a whistleblower?
–> A “whistleblower” is an employee who discloses information to a government or law enforcement agency, person with authority over the employee, or to another employee with authority to investigate, discover, or correct the violation or noncompliance, or who provides information to or testifies before a public body conducting an investigation, hearing or inquiry, where the employee has reasonable cause to believe that the information discloses:
- A violation of a state or federal statute,
- A violation or noncompliance with a local, state or federal rule or regulation, or
- With reference to employee safety or health, unsafe working conditions or work practices in the employee’s employment or place of employment.
A whistleblower can also be an employee who refuses to participate in an activity that would result in a violation of a state or federal statute, or a violation of or noncompliance with a local, state or federal rule or regulation.
What protections are afforded to whistleblowers?
- An employer may not make, adopt, or enforce any rule, regulation, or policy preventing an employee from being a whistleblower.
- An employer may not retaliate against an employee who is a whistleblower.
- An employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of a state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.
- An employer may not retaliate against an employee for having exercised his or her rights as a whistleblower in any former employment.
Article: Not every workplace complaint is legally protected whistleblowing
- A ref only blows his whistle on a play when he perceives a specific rule has been violated. He does not blow the whistle, for example, because he objects to fans razzing him
- Earlier this month, the California Court of Appeal confirmed in a non- precedential decision that not all terminations that result from workplace complaints amount to unlawful retaliation for legally protected whistleblowing. There is a distinction between a complaint about assertedly unlawful employer conduct and a complaint about conduct that does not even arguably violate the law
- (Fetus with down syndrome case)
–> Aram emailed her supervisor to object to the modification, writing the omission “could potentially make me personally liable for possible future lawsuits and it does not accurately reflect all my efforts or what actually happened in this patient’s care.” After being pressured by higher-ups to alter her notes, Aram entered the modified notes in the system as instructed. Weeks later, Aram was fired.
–> Aram sued. She claimed her supervisors’ instructions to alter the notes had been unlawful and that she had been fired in retaliation for objecting in violation of public policy and the state’s whistleblower law. The trial court summarily dismissed Aram’s claims and the Court of Appeal affirmed
–> The Court of Appeal concluded that LabCorp’s request that Aram omit “nonmedical information reflecting [Aram’s] efforts to determine the source of the administrative failure to inform the patient in a timely manner of certain test results” – the change to which she had objected in her email – was not unlawful.
article: Anatomy of a whistleblower claim
Factual Background
- Aaron Killgore was a program manager for SpecPro. SpecPro assists government agencies in preparing reports required by the National Environmental Policy Act (NEPA)
California Whistleblower Protection Act
- Section 1102.5(b) prohibits an employer from retaliating against an employee for “disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance … if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.”
The alleged suspected unlawful conduct need not have been committed when the alleged retaliatory firing occurred:
SpecPro could not escape liability under the whistleblower law by firing Killgore before the Conroe environmental assessment report was signed, and thus before the alleged violation of law he disclosed had occurred.
SpecPro’s reading of the statute would allow an employer to fire the potential whistleblower before completing the illegal act and thereby escape liability. California law does not limit whistleblower protections in such a manner.
Lesson:
Legal technicalities aside, employers generally should thoroughly investigate any employee disclosures of potential unlawful activity related to their operations, whenever and to whomever those disclosures are made.
As the late legendary former GE CEO Jack Welch and his business commentator wife Suzy Welch wrote 10 years ago in Fortune, “While in the vast majority of cases, whistleblowers are, to some degree, crazy, vengeful or both, companies should exhibit a heavy bias toward believing an informant is providing critical information about the company’s operations.”
