Module 10: Workplace Privacy

Question 1

Introduce issues of workplace privacy

Answer 1

Will have to come back to this one

Question 2

Discuss the impact on businesses of the lack of overall law for employment privacy in the US

Answer 2

US companies must be alert to the possibility that different workplace rules apply in other other countries.

Question 3

Contrast the regulation of employment privacy in the US and in countries with comprehensive data protection laws

Answer 3

Unlike the US, the EU includes employee privacy within its general rules applying to the protection of individuals.

Question 4

Distinguish the constitutional protections that apply to public employers and those that apply to private employers

Answer 4

The 4th amendment (searches & seizures) applies to public sector employers. The Constitution does NOT protect privacy in non-gov’t (private sector) workplaces

Question 5

Define the term “employment at will”

Answer 5

The employer has broad discretion to fire, or gather information about, an employee

Question 6

Explain why contract law is important to employment privacy protections

Answer 6

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.

Question 7

Name common-law torts relevant to employment privacy

Answer 7

1. Intrusion upon Seclusion

2. Defamation

Question 8

Describe an overview of state laws related to employee privacy

Answer 8

California has extended its state constitutional rights to privacy to private sector employees.

Question 9

List federal laws relevant to employee privacy

Answer 9

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

Question 10

Discuss which type of organizations should be concerned about HR-related privacy issues

Answer 10

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

Question 11

Describe the employment lifecycle, with privacy issues before, during, and after employment

Answer 11

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

Question 12

Name reasons why employers have unprecedented access to information about applicants

Answer 12

Changing IT and increased use of social media (and AI) has created an unprecedented amount of candidate data that is now available to employers

Question 13

List federal anti-discrimination laws that apply to hiring practices

Answer 13

• 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

Question 14

Name the federal law that is relevant to medical screenings related to employment

Answer 14

ADA

Question 15

List the federal law that regulates how employers perform background checks on job applicants

Answer 15

FCRA

Question 16

Discuss whether federal law preempts state laws in the area of employment credit history checks

Answer 16

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.

Question 17

Discuss the privacy protections in the Employee Polygraph Protection Act (EPPA)

Answer 17

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

Question 18

Explain how the Americans with Disabilities Act (ADA) applies to psychological testing

Answer 18

The ADA prohibits the use of medical tests, including those designed to test an impairment of mental health

Question 19

Describe the restrictions on public sector employers when testing or searching their employees

Answer 19

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.

Question 20

Contrast treatment of alcohol use to drug use under the ADA

Answer 20

Alcoholism is considered a disability protected by ADA, but not a dependency on drugs (CURRENT illegal drug use is excluded from ADA protections)

Question 21

List issues in lifestyle discrimination

Answer 21

Employers should use caution when implementing programs related to employees’ weight and smoking habits to avoid lifestyle discrimination claims

Question 22

Explain the legal authority for private sector employers to do monitoring and searches at work

Answer 22

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

Question 23

Describe types of workplace monitoring that can intrude on the privacy of employees

Answer 23

• Excessive video monitoring (i.e., in changing rooms)
• Monitoring of workplace conversations
• Email and other computer monitoring

Question 24

Discuss the privacy implications of Bring Your Own Device (BYOD) policies

Answer 24

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

Question 25

Identify the privacy protections in place when private employers use third parties to investigate employee misconduct

Answer 25

The employee was entitled to notice under FCRA, but FACTA amended it so that notice is no longer required if consumer reports are obtained in the context of an internal investigation. However, if the employer takes adverse action on the basis of these reports, then they must disclose a summary of the nature and substance of the communication/report to the employee (can be issued after the investigation)

Question 26

Examine workplace privacy issues once an employee has left the firm

Answer 26

Will need to come back to this

Question 27

List the types of procedures that a company should have in place to restrict access after an employee is no longer employed

Answer 27

• Secure the return of badges, keys, smart cards, and other methods of physical access
• Disable access for computer accounts
• Ensure the return of laptops, smartphones, storage drives and other devices that may store company information

Question 28

Discuss the pros and cons of maintaining employee records once the person is no longer employed

Answer 28

Pros:

• Provide references
• Respond to inquiries about benefits/pensions
• Address health & safety issues
• Respond to legal proceedings
• Meet legal/regulatory retention requirements for particular types of records

Cons:
- In some jurisdictions (i.e., EU) there may need to be a demonstrable business or legal reason to justify retaining certain info

Question 29

Describe the phases of the employment relationship where personal information is involved

Answer 29

In every phase of the relationship, from evaluation and hiring, to employee management and monitoring, to termination or departure

Question 30

Explain how employment privacy concerns expand as the size of the business grows

Answer 30

Global employers must navigate through a complex patchwork of applicable US, EU, and international privacy laws

Question 31

List the benefits of effective legal compliance and thoughtful management of employee personal information

Answer 31

These help reduce the risk of any potential legal claims as well as offer many benefits to employer and employee, including:

• minimizing the risk of info mishandling, disclosure or theft
• increasing employee morale
• improving the working relationship between employer and employee