Workplace Privacy

Question 1

Does the US have an overarching national employment law?

Answer 1

No, some state constitutions provide employee protections, nothing at federal level. Instead, look at through ADA, Pregnancy Protection Act, Retired Income Security Act, etc.

Question 2

How does the Federal Trade Commission (FTC) contribute to privacy in the workplace?

Answer 2

• Regulates unfair and deceptive commercial practices
• Enforces a variety of laws, including the Fair Credit Reporting Act (FCRA), which limits employers’ ability to receive an employee’s or applicant’s credit report, driving records, criminal records and other reports

Question 3

How does the Department of Labor (DOL) contribute to privacy in the workplace?

Answer 3

Oversees “the welfare of the job seekers, wage earners, and retirees of the United States by improving their working conditions, advancing their opportunities for profitable employment, protecting their retirement and healthcare benefits, helping employers find workers, strengthening free collective bargaining, and tracking changes in employment, prices, and other national economic measurements.”

Question 4

How does the National Labor Relations Board (NLRB) contribute to privacy in the workplace?

Answer 4

• Administers the National Labor Relations Act
• Conducts elections to determine if employees want union representation; investigates and remedies unfair labor practices by employers and unions

Question 5

How does the Occupational Health and Safety Act (OSHA) contribute to privacy in the workplace?

Answer 5

Requires employers to provide a safe workplace

Question 6

How does the Securities and Exchange Commission (SEC) contribute to privacy in the workplace?

Answer 6

• Requires disclosures about payment and other information about senior executives of publicly traded companies, as well as registration requirements for market participants, such as broker-dealers and transfer agents
• Protects employees’ right to report possible securities violations (aka “whistleblowers”)
• Note: While the SEC has not traditionally been involved in employee privacy protection, it does protect an employee’s right to report violations to the Commission. Some recent company policies have attempted to circumvent or even outright violate this right.

Question 7

How does the Equal Employment Opportunity Commission (EEOC) contribute to privacy in the workplace?

Answer 7

• Works to prevent discrimination in the workplace
• Oversees many laws, including Title VII of the Civil Rights Act, the Age Discrimination in Employment Act of 1967 (ADEA) and Titles I and V of the Americans with Disabilities Act of 1990 (ADA)

Question 8

Name the three primary U.S. Anti-Discrimination Laws, and their primary purpose

Answer 8

Civil Rights Act
Bars discrimination due to race, color, religion, sex and national origin
Americans with Disabilities Act (ADA)
Bars discrimination against qualified individuals with disabilities
Genetic Information Nondiscrimination Act (GINA)
Bars discrimination based on individuals’ genetic information

Question 9

When are background screenings before employment required?

Answer 9

Required for those who work with children, the elderly or disabled individuals. Employers must ensure their screenings are compliant and relevant per the Equal Employment Opportunity Commission.

Question 10

How does the Fair Credit Reporting Act relate to background screenings before employment?

Answer 10

The FCRA plays a role in regulating how employers perform background checks on a potential employee’s credit, criminal or driving histories.

Question 11

Are there any concerns with using automated employment decision tools as part of the hiring process?

Answer 11

Yes- using AI to analyze applications raises bias concerns.

Question 12

What are two permissible purposes to obtain a consumer report for a background check under the FCRA?

Answer 12

Preemployment screening for evaluating candidacy or to determine if an existing employee is qualified for promotion, reassignment or retention.

Question 13

If an employer requires a consumer report to complete a background check on a potential employee, the FCRA requires the following:

Answer 13

Employers must notify the applicant of the employer’s intention to obtain and use a consumer report,
give the applicant the option to receive a copy of the report,
obtain written consent from the applicant to obtain the report, obtain the report from a qualified credit reporting agency and,
prior to any adverse action, give notice and a copy of the report to the applicant for dispute.

Question 14

What are the business reasons companies should engage in employee monitoring? What are the reasons not to?

Answer 14

Pros: OSHA compliance to ensure a safe workplace; physical security and cybersecurity; training, quality assurance, security and liability; and improving work quality and keeping employees on task

Cons: monitoring can be an intrusion on the privacy of employees, compliance with complex rules and collective bargaining agreements can be difficult

Question 15

What are the limits/considerations for employers who monitor employees’ computer usage?

Answer 15

Employers can use social media to inform decisions; however, they must not violate existing antidiscrimination and privacy laws.
Employers should not require prospective or current employees to share access information to private networks as a condition of employment

Question 16

What are the limits/considerations for employers who monitor employees’ email and post?

Answer 16

Emails are generally covered under ECPA rules in that its interception is a criminal offense and provides a private right of action unless consent has been given or it is done within the course of business.

U.S. federal law generally prohibits interference with mail delivery but allows the opening of business letters and packages by a representative of the business post-delivery

Question 17

What are the limits/considerations for employers who use cameras to monitor employees?

Answer 17

Photography falls under the same statutes and common laws as video cameras. Cameras are forbidden in restrooms, locker rooms, places where employees change clothes and any other “private place.”

• Federal and state laws regulate workplace surveillance
• Recordings without sound are outside the scope of statutes

Question 18

What are the limits/considerations for employers who monitor employees’ geolocation?

Answer 18

Geolocation data: Monitoring of company vehicles is allowed if the vehicles are being used for business during work hours and employees have been informed

Question 19

What are the limits/considerations for employers who monitor employees’ use of personal devices during remote work?

Answer 19

While employers are generally within their rights to monitor all activity carried out on a company-owned device, there is less clarity in the law when it comes to tracking employees on their own devices.

While employers have the right to monitor the use of employer-provided computer equipment and networks, employers should disclose surveillance and let employees know they will be monitored

• Employee expectations of privacy in a BYOD context are likely to be higher because a personal device is involved, therefore the same surveillance and monitoring activities used for work-issued devices may not be appropriate for personal devices
• Employers may wish to track employees’ locations through GPS apps in employee smartphones, but tracking presents risks employers need to understand; few states have passed laws specifically concerning employee tracking so obtaining consent can protect both the employer and employee
• Employers should first check existing laws in the area that the business operates

Question 20

What are the limits/considerations for employers who monitor employees’ telephony (mobile device usage)?

Answer 20

“Telephony” has been expanded to include internet services and mobile communications (such as voicemail, video conferencing and VoIP) in addition to telephones and faxes

• Employees’ personal cell phone usage, personal telephone calls and text messaging, if conducted in the workplace or on company devices, can potentially be legally accessible to employers
• Some state laws place restrictions on recording phone calls
• ECPA provides some protections for telephone calls and voicemail

Question 21

What is the Electronic Communications Privacy Act of 1996? How does it relate to employee privacy?

Answer 21

The Electronic Communications Privacy Act of 1986, or ECPA, prohibits the interception of wire communications, which includes not only phone calls but also video recordings, hidden microphones and emails.

In the workplace, there are two exceptions that permit the interception of communication: when one of the parties has given consent and when done in the course of business.

Question 22

What are the limits/considerations for employers who monitor employees’ biometrics and/or participation in wellness initiatives?

Answer 22

Employers should take care to ensure that these programs do not become avenues for employee discrimination.
Employers must give notice and obtain consent before collecting or disclosing biometric identifiers. Illinois, Texas and Washington now have laws specific to the collection of biometric data.
When biometric authentication is used as a privacy or security measure, it could potentially reveal protected biological information.

Question 23

What privacy considerations should be taken into account when investigating employee misconduct?

Answer 23

Investigating employee misconduct requires careful documentation and possible collaboration with other employees, HR and third parties. Employers are cautioned to avoid liability by taking allegations seriously, acting in accordance with the law and treating employees fairly.

Alleged misconduct and investigation should be properly documented to minimize risks from subsequent claims by the employee. Progressive and documented discipline for initial or minor infractions can also provide a reasoned basis for more serious discipline or termination if necessary.

Often employers may work with third parties to investigate employee misconduct. Under FACTA, employers are not required to notify an employee that an outside organization is conducting an investigation.

Question 24

What are the limits/considerations for employers who use polygraphs to screen potential employees or evaluate existing ones?

Answer 24

Lie detectors, such as polygraphs, voice stress analyzers and psychological stress evaluators are used to render a diagnostic opinion regarding an individual’s honesty

The Employee Polygraph Protection Act of 1988 (EPPA) prohibits employers from using lie detectors on employees or applicants or taking adverse action against those refusing to take a test. There are exceptions for some government employees, security services, controlled substance manufacturers, defense contractors and national security functions.

Question 25

What are the limits/considerations for employers who use psychological testing to screen potential employees or evaluate existing ones?

Answer 25

Some employers will use psychological tests measuring personality traits, such as honesty, preferences and habits, when making hiring and employment decisions

• Psychological tests used to predict conditions such as depression and paranoia may qualify as medical examinations
• EPPA (Employee Polygraph Protection Act) and ADA together place significant national limits on psychological testing in the workplace

Question 26

What are the limits/considerations for employers who use substance use testing to screen potential employees or evaluate existing ones?

Answer 26

Testing can be done pre-employment under reasonable suspicion, post-accidents, as routine or random.

Federal law mandates testing for positions such as aviation, railroading and trucking industries.

Testing is done to reduce costs resulting from lowered productivity, accidents and absenteeism, medical care costs, theft or other illegal activity, maintaining corporate image and complying with legal rules that impose or support a drug testing policy.

Testing is generally allowed pre-employment if it is not designed to identify legal use of drugs or addiction to illegal drugs.

Question 27

How should employers protect employee privacy during termination?

Answer 27

Transition management: clear procedures should also be in place for termination of the employment relationship. Procedures for termination should include a transition management system that takes privacy and security into account

Records retention: Privacy professionals need to consider appropriate practices for maintaining former employee records. These protect both the employer and the former employee

References: An employer may be asked to provide references for former employees. HR should have basic guidelines and work with legal counsel on an appropriate response to such requests.

Question 28

What are example components of a transition management system?

Answer 28

• Implement a secure method to deactivate physical access badges, keys and smartcards
• Disable access to computer accounts
• Design IT systems to minimize disruption
• Ensure the return of all devices and any company data that is held by the employee outside of the company’s systems
• Review work-related email to ensure proprietary company information is not leaked

Question 29

What are some benefits of using appropriate practices to maintain former employee records?

Answer 29

• The employer is protected in the event of lawsuits, legal obligations or inquiries that may arise after the employee has left
• Detailed and sensitive information about the employee is protected
• Retained HR records aid with references, benefits and pension inquiries; address health and safety issues, legal proceedings, legal or regulation retention requirements

Question 30

What should employers consider in regards to providing references for former employees?

Answer 30

• Companies must balance reasons to provide references with the risk of a defamation suit
• Some state statutes require references for certain occupations
• Common law imposes no duty on a former employer to provide a reference
• Common law provides what is known as a “qualified privilege” for employers to report their experience with and impressions of the employee