Workplace Privacy

Question 1

Relevant constitutional law

Answer 1

Fourth Amendment (prohibits unreasonable searches and seizures by state actors–and in some states, including CA, private employers)

Question 2

Relevant state law - areas

Answer 2

Contract law, tort law, statutory law

Question 3

Relevant state contract law

Answer 3

At-will employment is the baseline.

Employee-employer relationship is pretty malleable based on the employment contract.

Some collective bargaining agreements have privacy provisions (like limits on drug testing and workplace monitoring).

Question 4

Relevant state tort law

Answer 4

1. Intrusion upon seclusion: “one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another person . . . [in a way that is] highly offensive to a reasonable person.”
   Examples: camera in the bathroom; secret wiretaps
2. Publicity given to private life: “giv[ing] publicity to a matter concerning the private life of another [, where]
   (a) that would be highly offensive to a reasonable person, and
   (b) the subject matter is not of legitimate concern to the public.”
3. Defamation

Question 5

Relevant state statutory law (examples)

Answer 5

CA: law guaranteeing women’s right to wear pants at work

FL: right of employees to shop where they want

Marital status discrimination, categories of inquiries about prospective employees.

Prohibitions of requiring employees to disclose passwords to social media accounts.

Question 6

Federal Laws on Employee Privacy

Answer 6

(a) anti-discrimination laws (protect privacy regarding status in a protected class)
(b) laws regarding employment benefits management
(i) HIPAA - Privacy and Security Rules apply to employers
(ii) ERISA - ensures employee benefits programs are created fairly and administered properly
(c) laws that regulate employer recordkeeping:
(i) FCRA - regulates use of consumer reports by employers
(ii) [others that don’t bear directly on privacy. Why are they in the book?]

Question 7

Privacy issues before employment

Answer 7

Employee background screening

Question 8

Employee background screening - Antidiscrimination laws

Answer 8

Title VII of the Civil Rights Act - race, color, religion, sex (including orientation and identity), national origin

Age Discrimination Act of 1967 - age over 40

Pregnancy Discrimination Act of 1978: pregnancy, childbirth, and related medical conditions

ADA: disabilities

Genetic Information Nondiscrimination Act of 2008: genetic information, in the absence of manifest symptoms

Bankruptcy Act: persons who have filed for bankruptcy (though maybe not prior to employment)

Roughly half of states: marital status

Question 9

Medical screenings - ADA

Answer 9

Can condition employment on a medical screening after the offer of employment is made, but only if

(a) all employees have to take the exam, regardless of disability status;
(b) exam results are treated confidentially; and
(c) results are used only in accordance with ADA prohibitions against discrimination.

Question 10

Background checks - FCRA

Answer 10

Must be used for a permissible purpose. “Employment purposes” is a permissible purpose, with written consent.

To get the report, employer must:

(a) provide written notice that employer is getting report, and indicate whether an investigative report will be obtained;
(b) get written consent;
(c) get information only from a qualified CRA;
(d) certify to the CRA that it has a permissible purpose and consent;
(e) before taking an adverse action, provide a pre-adverse-action notice to applicant with a copy of the report, to provide the chance to dispute;
(f) after taking an adverse action, provide an adverse action notice.

There are civil and criminal penalties, including a private right of action

Question 11

Background checks - ICRAA

Answer 11

California law. Like FCRA, but more stringent and not preempted because it’s more stringent. Requires employers to provide copies of reports to applicants, even if waived.

For investigative reports, requires a separate notice to applicants.

Must obtain separate written consent for every background check (under FCRA, employers can use the same original consent to get updates).

Must get consent even if the employer conducts the background check itself.

Question 12

Privacy Issues during employment

Answer 12

Polygraphs and psychological testing

Substance testing

Lifestyle discrimination

Employee monitoring

Emerging issues such as social network monitoring and BYOD (bring your own device)

Investigations of Employee Misconduct

Question 13

Privacy issues after employment

Answer 13

Access to physical and informational assets

Human resources issues