Workplace privacy Flashcards
workplace privacy statutes/ federal laws
there is no state or federal laws that govern all privacy considerations that may arise between employers and their employees
government employees
government employers have heightened obligations
1st amendment- affect social media policies for employees
4th amendment- may limit extent to which they may search areas employees maintain private interest in (even if owned by employer)
employee background screening
employment background checks are considered as consumer reports and are regulated by FCRA and FTC
workplace benefits
department of labor is prime enforcement and rule making entity under fair labor standards act and employment retirement income security act
works to
1. foster promote and develop welfare of wage earners, job seekers and retirees of US
2. improve working conditions
3. advance opportunities for profitable employment
4. assure work related benefits and rights
collective bargaining
National labor relations board (NLRB) has the prime responsibility for enforcement and rule making under NLRA
grants employees right to join unions and bargain collectively
workplace safety
occupational safety and health act (OSHA) ensures safe and healthy working conditions for men and women by setting and enforcing standards and providing training outreach, education, and assistance
primary enforcement authority
executive compensation
SEC enforces and makes rules under security exchange act of 1934
requires some companies to publicly disclose salary of certain c level executives
age discrimination in employment act of 1967 (ADEA)
employers may not discriminate against those over age of 40
bankruptcy act
employers may not discriminate against persons who have filed for bankruptcy
pregnancy discrimination act
prohibits discrimination due to pregnancy, childbirth, and related medical conditions
equal pay act of 1963
prohibits wage disparity on basis of sex
title VII civil rights act of 1964
prohibits employment discrimination on basis of race, color, religion, sex or national origin (direct or indirect) unless
- discrimination is for bona fide occupational qualification or
- religious organization seeks to hire employees of its particular religion
who it applies to
1. employers with 15+ employees
2. employment agencies
3. labor unions
4. joint labor management committees
employment discrimination enforcement
EEOC has prime responsibility of enforcement of federal employment related to antidiscrimination laws
EEOC consists of 5 members (no more than 3 of same political party) + general counsel (conducts litigation for EEOC) appointed by president
5 year term for members
4 year term for general counsel
title I American with disabilities act (ADA)
prohibits employment discrimination against qualified individuals with disabilities
who it applies to
1. employers with 15+ employees
2. employment agencies
3. labor unions
4. joint labor management committees
ADA requirements
- should err on side of assuming condition is disability and not discriminate against such individuals based on disability
- may not request medical exam or inquire whether employer or applicant has disability unless
-all entering employees subject to examination
- info about med condition is kept separate from other info and treated as confidential
- results are only used in accordance with other provisions of ADA
AI tools
EEOC recommends employers to make appropriate accommodations when using automated employment decision tools
should not
1. rely solely on tool without providing reasonable accommodations
2. rely on tool that intentionally/unintentionally screens out individual with disabilities
3. algorithm based tool that violates restriction on disability inquiries and reliance on medical conditions
should
1. be transparent regarding accommodation process
2. provide notice prior to using AI tools
3. use only tools that focus on essential functions of job or necessary for job
4. confirm that all vendors comply with applicable law
psychological evaluations
there is no broad based prohibition- generally permitted unless:
1. pre employment psychological testing that amounts to medical evaluations are prohibited under ADA
- asking about family history of psychological problems that have genetic component are prohibited under GINA
employee polygraph protection act of 1988 (EPPA)
employers and prospective employers are prohibited form
- requesting, requiring suggesting or causing employee to undergo lie detector test
- using lie detector test results for any reason
- retaliating against employee who refuses to submit to lie detector test or files complaint against employer that requests one
EPPA exceptions (polygraph allowed)
certain employers may take polygraph test
1. federal, state and local gov
2. gov contractors for national defense and security
3. primary business is providing security for facilities and transport of goods
4. manufacture, distribute dispense controlled substances
ongoing investigation involving economic loss or injury to employers business
- employee has access to property subject to investigation
- employer has reasonable suspicion employee is involved in incident
- employer signed statement that it maintained for 3 years setting forth investigation
- test isn’t sole basis for adverse employment decisions
EPPA employee rights
- notice of rights from employer/prospective employer
- allowed to
- terminate test at any time
- no degrading/intruding questions
- no certain questions (ex. religious belief questions)
- no test if cause examiners abnormal response due to medical condition
- written consent
- if adverse action must debrief examinee and provide written copy of questions and answers
EPPA enforcement
secretary of labor (DOL) make rule and can impose record keeping requirements, subpoena for investigation and enforcement
private cause of action
employer drug testing
government employers- 4th amendment restrictions
private employers- no bar to drug testing under federal law or ADA generally need reasonable suspicion employee is engaged in drug use
lifestyle discrimination
employers should have written policy in place that adequately describes rationale for adopting policies and how policy directly related to job functions or business necessity
employee monitoring- private employees
little expectation of privacy
employer must establish formal written policies for workplace monitoring signed by employee telling:
1. purpose
2. what is being monitored
3. how monitoring
4. what being maintained
5. how used
6. who disclosed to
wiretap act has greatest impact on how employers monitor their workforce
email and text messages monitoring
illegal to acquire alter or block electronic communications while in electronic storage under stored communications act unless
- authorized by person
- authorized by entity providing service (ex. employer)
city of Ontario v Quon
upheld employer authority to look at employees text messages when employer provided communication device and search conducted to determine whether employee abiding by employer electronic use requirements
postal mail monitoring
criminal offense to interfere with US postal mail delivery but business is permitted to open mail and packages delivered to business address even if marked personal or confidential
telephone monitoring
generally allowed to under one party consent (employer can monitor phone unannounced for business purpose if they are the party providing wire/electronic communication)
states can make 2 person consent required
video monitoring
video monitoring is allowed if no sound recording (audio recording )
states limit use of video recording and photos (ex. Michigan prohibited placing eavesdropping device in private place to monitor sounds or events)
monitoring- bring your own device policies (BYOD)
companies that permit employee to use personal devices for work purposes should prohibit employee from downloading or copying proprietary information onto their personal devices
investigation of employee misconduct
- process for investigation should be set forth in written policies and should follow processes put in place
- should use 3rd party to conduct investigation when
- misconduct involves sensitive issue
- when employee accused of misconduct is high level executive or manager
vail letter
employers are required to disclose existence of investigations conducted by 3rd party unless meet FACTA amendment exception requirements
1. communication between 3rd party and employer is made in connection with suspected employment misconduct or compliance with laws investigation
2. investigation is not into employees credit worthiness standing or capacity
3. communications made to employers as part of investigation may not be provided to anyone exception
- employer or their agence
- federal or state gov agencies or officers
- self regulatory authority
- someone whom disclosure is required by law
- gov agencies if limited to identifying info
FMLA
employers must provide employees with unpaid, job protected leave when
- birth and care of newborn child of employee
- placement of child for adoption or foster care with employee
- care for spouse, child or parent of employee that has serious health condition
- employee unable to work as result of serious health condition
