Module 10: Workplace Privacy Flashcards
Introduce issues of workplace privacy
Will have to come back to this one
Discuss the impact on businesses of the lack of overall law for employment privacy in the US
US companies must be alert to the possibility that different workplace rules apply in other other countries.
Contrast the regulation of employment privacy in the US and in countries with comprehensive data protection laws
Unlike the US, the EU includes employee privacy within its general rules applying to the protection of individuals.
Distinguish the constitutional protections that apply to public employers and those that apply to private employers
The 4th amendment (searches & seizures) applies to public sector employers. The Constitution does NOT protect privacy in non-gov’t (private sector) workplaces
Define the term “employment at will”
The employer has broad discretion to fire, or gather information about, an employee
Explain why contract law is important to employment privacy protections
Contract law is important because a contract is a binding obligation and it can alter the rules between employer and employee. If the employer makes promises in a contract to honor employee privacy, then violations can be an enforceable breach of contract.
Name common-law torts relevant to employment privacy
- Intrusion upon Seclusion
2. Defamation
Describe an overview of state laws related to employee privacy
California has extended its state constitutional rights to privacy to private sector employees.
List federal laws relevant to employee privacy
There is no overarching or organized law for employment privacy in the US. Federal laws apply in specific areas, such as prohibiting discrimination and regulating certain workplace practices (i.e., employment screening, use of polygraphs and use of credit reports). Those laws are:
- Anti-discrimination laws
- FCRA
- Employee Polygraph Protection Act (EPPA)
- Wiretap and other surveillance laws
Discuss which type of organizations should be concerned about HR-related privacy issues
Virtually all organizations should be concerned about HR-related privacy issues, including those in traditional industries that are not focused on data or data privacy
Describe the employment lifecycle, with privacy issues before, during, and after employment
Before employment, when background checks and screening may take place, during employment (once an applicant is hired), regarding conduct, etc, and after employment, to include past performance, etc
Name reasons why employers have unprecedented access to information about applicants
Changing IT and increased use of social media (and AI) has created an unprecedented amount of candidate data that is now available to employers
List federal anti-discrimination laws that apply to hiring practices
- Title VII of the Civil Rights Act of 1964
- The Equal Pay Act of 1963
- The Age Discrimination Act
- The Pregnancy Discrimination Act
- ADA
- The Genetic Information Nondiscrimination Act of 2008
- The Bankruptcy Act
Name the federal law that is relevant to medical screenings related to employment
ADA
List the federal law that regulates how employers perform background checks on job applicants
FCRA
Discuss whether federal law preempts state laws in the area of employment credit history checks
Though the FACTA amendments do preempt state laws on many occasions, they do NOT preempt states from creating stronger legislation for employment credit history checks.
Discuss the privacy protections in the Employee Polygraph Protection Act (EPPA)
Under the EPPA, employers are prohibited from using “lie detectors” on incumbent workers or to screen applicants. There are exceptions for federal workers or employees in certain security services
Explain how the Americans with Disabilities Act (ADA) applies to psychological testing
The ADA prohibits the use of medical tests, including those designed to test an impairment of mental health
Describe the restrictions on public sector employers when testing or searching their employees
There is considerable case law under the 4th amendment about when administering a test or conducting a search is reasonable, and federal law actually mandates drug testing for certain positions within the federal sector.
Contrast treatment of alcohol use to drug use under the ADA
Alcoholism is considered a disability protected by ADA, but not a dependency on drugs (CURRENT illegal drug use is excluded from ADA protections)
List issues in lifestyle discrimination
Employers should use caution when implementing programs related to employees’ weight and smoking habits to avoid lifestyle discrimination claims
Explain the legal authority for private sector employers to do monitoring and searches at work
Private sector employees in general have limited expectation of privacy in the workplace. Because physical facilities belong to the employer, they have broad legal authority to monitor and conduct searches
Describe types of workplace monitoring that can intrude on the privacy of employees
- Excessive video monitoring (i.e., in changing rooms)
- Monitoring of workplace conversations
- Email and other computer monitoring
Discuss the privacy implications of Bring Your Own Device (BYOD) policies
Though it is generally acceptable for private sector employers to monitor employees’ activities on a work network and work-issued devices, it less clear how employers should handle monitoring of personal devices
