Workplace Privacy

Question 1

Constitutional law for employee privacy

Answer 1

The US constitution does have workplace privacy provisions that apply to the federal and state governments but they don’t apply to private sector employment

Question 2

State contract, tort and statuary law and employee privacy

Answer 2

Contracts - collect bargaining agreements.. employees have narrow protections ( unions negotiate provisions that put limits on drug testing and monitoring in the workplace)
Common-law torts (employee must show egregious practices to succeed)
- intrusion upon seclusion - employer puts a camera in the bathroom
- publicity given to private life -
- defamation - false drug testing report is issued or if a former employer provides a factually incorrect reference to a possible future employer
Statutory law - vary enormously state by state

Question 3

GINA

Answer 3

Genetic information non discrimination act of 2008

Prohibited employers and health insurance providers from discriminating against individuals absent the manifestation of disease or disorder
Prohibit health plan providers from requesting or requiring genetic testing in connection with offering group health plans

Question 4

What US federal laws regulate employee benefits management?

Answer 4

HIPAA - health insurance portability and accountability act
COBRA - the consolidated omnibus budget reconciliation act
ERISA - the employee retirement income security act
FMLA - the family and medical leave act

Question 5

What US federal laws regulate data collection and record keeping?

Answer 5

FCRA - fair credit reporting act
FLSA - the fair labor standards act
OSHA - the occupational safety and health act
The securities exchange act
IRCA- The immigration reform and control act
NLRA - the national labor relations act
The whistleblower protection act

Question 6

Department of labor

Answer 6

Oversees the welfare of the job seekers, wage earners and retirees
This department administers FLSA OSHA and ERISA

At the state level the department of labor oversees state labor laws including minimum wage, and limiting work by minors. They may conduct safety inspections of worker conditions, state unemployment insurance programs

Question 7

EEOC

Answer 7

Equal employment opportunity commission
Works to prevent discrimination in the workplace
Oversees the civil rights act, age discrimination in employment act and the American with disabilities act

Question 8

NLRB

Answer 8

National labor relations board
Administers the national labor relations act
Investigated and remedies unfair labor practices by employers and unions

Question 9

FTC employee regulations

Answer 9

Regulate unfair and deceptive practices and enforce the FCRA which limits employee ability to receive an employees or applicants credit report driving records criminal records and other consumer reports

Question 10

OSHA

Answer 10

The occupational safety and health act which regulates workplace safety

Question 11

What federal agencies protect employee privacy

Answer 11

Department of labor 
The equal employment opportunity commission 
Federal trade commission 
Consumer financial protection bureau 
National labor relations boards

Question 12

Under the FCRA when can a consumer report be obtained?

Answer 12

If a permissible purpose exists

• preemployment screening for the purpose of evaluating the candidate for employment
• determining if existing employee qualifies for promotion reassignment or retention

Question 13

What is an investigative consumer report under the FCRA that employers can obtain on an applicant?

Answer 13

One in which some of the information is acquired through interviews with Neighbors, friends, associates or acquaintances of the employer such as reference checks

Question 14

What standards must an employer meet to obtain a consumer report under the FCRA

Answer 14

• obtain written consent from the applicant
• provide notice to the applicant that it is obtaining a consumer report for employment purposes
• obtain data only from a qualified consumer reporting agency
• certify to the CRA agency that the employers has a permissible purpose and has obtained consent from the employee
• before taking adverse action such as denial of employment provide a pre adverse action notice to the applicant with a copy of the consumer report to allow the applicant to dispute
• after taking adverse action, provide an adverse action notice

Question 15

ADA

Answer 15

Americans with disabilities act bars discrimination against qualified individuals with disabilities
Preemployment Inquiries and the use medical examinations are considered discrimination
Requires an employer to provide reasonable accommodation to qualified individuals who are employees or applicant for employment

Question 16

EPPA

Answer 16

Employee polygraph protection act of 1998
Federal protection issued by the department of labor.
Employers are prohibited from using lie detectors (polygraphs, voice stress analyzers, psychological stress evaluators) on incumbent workers or to screen applicants
Does not preempt state laws

Question 17

When are Psychological tests used

Answer 17

Used to measure personality traits, such as honesty, preferences and habits in hiring and employment. These types of tests are mostly used in positions for management or sales

Question 18

Substance use testing in the workplace

Answer 18

The ADA specifically excludes illegal drug use from its protections
Federal law mandates drug testing for certain positions, and these preempt state laws
Drug testing can be used…
- preemployment if not designed to identify legal use or drugs or addiction to illegal drugs
- reasonable suspicion based on specific facts
- routine testing if employees are notified at the time of hire
- post-accident testing if there is suspicion that the employee involved in the accident was under the influence
- random Testing in highly regulated industries

Question 19

Lifestyle discrimination

Answer 19

Weight - ADA was amended to protect a person who is 100 pounds over weight. Example of discrimination on weight in airlines
Smoking - no federal law protects smokers from discrimination. State laws may limit smoking bans to the workplace and are protected if they chose to smoke while not at work

Question 20

What are some reasons for monitoring employees in the workplace?

Answer 20

Follow workplace safety
Protect physical security
Protect trade secrets
Limit liability for unlicensed transmission of copyrighted material or other company confidential information
Improve work quality by monitoring service calls
Try to keep employees on task

Question 21

What should employers consider if they want to conduct employee monitoring?

Answer 21

Formal policies about monitoring (AUP)

Question 22

Video surveillance in the workplace

Answer 22

Many Security cameras CCTV are used at the perimeter of a business to prevent robberies theft etc. but some state laws limit the use of photography or video in certain areas (restrooms, lockers rooms, or other private place)

Question 23

Electronic communications privacy act in the workplace

Answer 23

ECPA does not preempt stricter state privacy protections
Generally the ECPA is strict in prohibiting the interception of wire communications which can be a criminal offense.

Two exceptions apply in the workplace for this law

• if a person is a party to a call or where one of the parties has given consent
• the interception is done in the ordinary course of business

Question 24

Stored communication - ECPA and SCA

Answer 24

Generally it is prohibited to acquire alter or block electronic communications while in electronic storage facility through which an electronic communication service is provided

A couple exceptions in the workplace are

• by the person or entity providing a wire or electronic communications service
• by a user of that service with respect to a communication of or intended for that user

Generally employers are permitted to look at workers electronic communications if the employers reason for doing so is reasonable and work related

Question 25

Postal mail monitoring

Answer 25

US federal law generally prohibits interference with mail delivery. Mail is considered delivered however when it reaches a business.

Employers can mitigate risk with monitoring postal mail by advising employees not to receive personal mail at work, declining to read mail once they consider it personal, and maintaining confidentiality for any personal information obtained in the course of monitoring

Question 26

Location-based service

Answer 26

Employers interested in monitoring the location of a company vehicle equipped with GPS may do so provided the monitoring occurs for business purpose during business hours and employees have been informed

Companies wishing to monitor the location of employees may face greater legal barriers and some states limit monitoring of employee geolocation

Question 27

Social media and background screening

Answer 27

Social media has been used to screen prospective employees and companies now exist to screen candidates for predesignated elements selected by the employer

In doing this companies should be alert to the fact that the FCRA applies to these no traditional providers of background check information

Question 28

Social media and monitoring employees

Answer 28

Employers can use social media in informing their decisions but they must not violate existing anti discrimination and privacy laws. This includes protected classes such as religion, ethnicity, gender, political affiliation etc which are usually available on social media

Question 29

BYOD and workplace privacy

Answer 29

Employers should clearly address BYOD concerns, privacy limits and risks in policies
The same monitoring activities used for work issued device may not be appropriate on personal devices
If required to search a personal device due to a data breach or similar exposure of private employee data should be minimized and should limit the scope of their searches

Question 30

DLP in the workplace

Answer 30

Data loss prevention is designed to ensure sensitive data is not accessed misused or lost by unauthorized users. DLP software monitors and controls endpoint activities as well as protecting data as it moves

Concerns in the workplace are that it is mass surveillance and could record every keystroke geolocation and activating webcams. This may significantly exceed traditional workplace monitoring

Question 31

Use of Third parties in workplace investigations

Answer 31

FACTA provided that if certain conditions were met an employer is no longer required to notify an employee that it is obtaining an investigative consumer report on the employer from an outside organization.

Question 32

Records retention after employee termination

Answer 32

HR records can be retained for references purposes, respond to inquiries about benefits, legal proceedings, and met legal and regulatory retention requirements.

Consider record retention requirements in other jurisdictions

Question 33

Employee termination - performance records

Answer 33

HR may collect sensitive information about an employees performance in the period before termination.

This may be gathered to document a basis for the termination in case the employee brings a wrongful termination claim to the employer

Question 34

Employee termination - references

Answer 34

HR should have basic guidelines but should work with legal to collaborate on an appropriate response in more complex situations

Companies should balance reasons to provide a reference with the risk for defamation. Laws vary state to state.

No common law to supply referenced but some require it for specific occupations ( pilot school teacher)

Question 35

Civil rights Act of 1964

Answer 35

Bars discrimination in employment due to race, color, religion, sex, and national origin.

Question 36

Laws in the workplace

Answer 36

There is no overarching law for employment privacy in the US
Federal laws apply in specific areas to prohibit discrimination and regulate workplace practices
State legislatures have enacted numerous employment privacy laws providing protections to employees in a range of specific situations which vary state by state

Question 37

What does the vail report say regarding employee misconduct investigations?

Answer 37

If an employers hired an outside organization such as a private investigator or background research firm to conduct these investigations the outside org is considered a CRA under FCRA and any report provided is an investigative consumer report

Based on this The employer is required to provide notice to the suspected employee

Question 38

How did FACTA amend the FCRA to address the proble,s created by the vail letter?

Answer 38

Provides that is certain conditions were met an employer is no longer required to notify an employee that it is obtaining an investigative consumer report on the employee from an outside org in the context of an internal investigation

Changed the definition of consumer report under FCRA to exclude communications relating to employee investigations from the def if conditions were met

Question 39

What conditions must be met under FACTA to exclude communications relating to employee investigations from the definition of consumer report?

Answer 39

The comm is made to an employer in connection with the investigation

• the suspected mis conduct related to employment
• compliance with federal state or local laws and regulations

The comm is not made for the purpose of investigating a consumers credit worthiness credit standing or credit capacity

The comm is not provided to any person except

• the employer or agent of the employer
• a federal, state or local government officer agency or department
• a self regulating org with authority over the activities of the employer or employee
• as required by law
• government agencies