Intro to Workplace Privacy

Question 1

What is the status of law for employment privacy in the U.S.?

Answer 1

• no organized law for employment privacy in U.S.
• governed by federal laws in specific areas and by state employment privacy laws

Question 2

Workplace privacy under U.S. constitutional law?

Answer 2

• Constitution has significant workplace privacy provisions that apply to federal and state governments, but don’t affect private-sector employment
• 4A prohibits unreasonable search and seizure by state actors

Question 3

Define:

collective bargaining agreements

Answer 3

most important contracts concerning employee privacy, as unions have often negotiated provisions that, for example, impose limits on drug testing and monitoring of the workplace by the employer

Question 4

What are the three relevant torts with workplace privacy?

Answer 4

must be fairly egregious fact pattern
* intrusion upon seclusion: if intrusion would be highly offensive to a reasonable person (e.g. peephole or secret wiretap)
* publicity given to private life: if matter publicized would be highly offensive to reasonable person and is not of legitimate concern to the public
* defamation: false or defamatory statement

Question 5

How do federal laws touch upon employment privacy?

Answer 5

• federal laws prohibiting discrimination which provide some privacy protection
• federal laws that regulate employee benefits management that offer certain privacy and security protections for benefits-related information and also often mandate collection of employee medical information
• employee privacy protected by several federal agencies
• federal laws with employment privacy implications regulate data collection and recordkeeping

Question 6

What are examples of federal laws that regulate data collection and recordkeeping with employee privacy implications?

Answer 6

• FCRA regulates use of consumer reports obtained from CRAs in reference-checking and background checks of employees
• Fair Labor Standards Act (FLSA) establishes minimum wage and sets standards for fair pay
• OSHA regulates workplace safety
• Whistleblower Protection Act protects federal employees and applicants who claim to have been subjected to personnel actions because of whistleblowing activities
• NLRA sets standards for collective bargaining, which also apply in social media comms
• Immigration Reform and Control Act requires employment eligibility verification
• Securities Exchange Act requires disclosures about payment and other info about senior execs of publicly traded companies

Question 7

What are the federal agencies that protect employee privacy?

Answer 7

• U.S. Department of Labor administers variety of federal laws, FLSA, OSHA and ERISA
• Equal Employment Opportunity Commission works to prevent discrimination in workplace
  oversees Title VII of Civil Rights Act, Age Discrimination in Employment ACt and Titles I and V of Americans with Disabilities Act (ADA)
• FTC and CFPB regulate unfair and deceptive practices and enforce laws like FCRA,
• National Labor Relations Board (NLRB): administers national Labor Relations Act and conducts elections to determine if employees want union representation and investigate and remedies unfair labor practices by employer and unions