Workplace privacy

Question 1

workplace privacy statutes/ federal laws

Answer 1

there is no state or federal laws that govern all privacy considerations that may arise between employers and their employees

Question 2

government employees

Answer 2

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)

Question 3

employee background screening

Answer 3

employment background checks are considered as consumer reports and are regulated by FCRA and FTC

Question 4

workplace benefits

Answer 4

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

Question 5

collective bargaining

Answer 5

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

Question 6

workplace safety

Answer 6

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

Question 7

executive compensation

Answer 7

SEC enforces and makes rules under security exchange act of 1934

requires some companies to publicly disclose salary of certain c level executives

Question 8

age discrimination in employment act of 1967 (ADEA)

Answer 8

employers may not discriminate against those over age of 40

Question 9

bankruptcy act

Answer 9

employers may not discriminate against persons who have filed for bankruptcy

Question 10

pregnancy discrimination act

Answer 10

prohibits discrimination due to pregnancy, childbirth, and related medical conditions

Question 11

equal pay act of 1963

Answer 11

prohibits wage disparity on basis of sex

Question 12

title VII civil rights act of 1964

Answer 12

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

Question 13

employment discrimination enforcement

Answer 13

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

Question 14

title I American with disabilities act (ADA)

Answer 14

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

Question 15

ADA requirements

Answer 15

1. should err on side of assuming condition is disability and not discriminate against such individuals based on disability
2. 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

Question 16

AI tools

Answer 16

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

Question 17

psychological evaluations

Answer 17

there is no broad based prohibition- generally permitted unless:
1. pre employment psychological testing that amounts to medical evaluations are prohibited under ADA

2. asking about family history of psychological problems that have genetic component are prohibited under GINA

Question 18

employee polygraph protection act of 1988 (EPPA)

Answer 18

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

Question 19

EPPA exceptions (polygraph allowed)

Answer 19

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

Question 20

EPPA employee rights

Answer 20

1. notice of rights from employer/prospective employer
2. 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

Question 21

EPPA enforcement

Answer 21

secretary of labor (DOL) make rule and can impose record keeping requirements, subpoena for investigation and enforcement

private cause of action

Question 22

employer drug testing

Answer 22

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

Question 23

lifestyle discrimination

Answer 23

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

Question 24

employee monitoring- private employees

Answer 24

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

Question 25

email and text messages monitoring

Answer 25

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)

Question 26

city of Ontario v Quon

Answer 26

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

Question 27

postal mail monitoring

Answer 27

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

Question 28

telephone monitoring

Answer 28

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

Question 29

video monitoring

Answer 29

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)

Question 30

monitoring- bring your own device policies (BYOD)

Answer 30

companies that permit employee to use personal devices for work purposes should prohibit employee from downloading or copying proprietary information onto their personal devices

Question 31

investigation of employee misconduct

Answer 31

1. process for investigation should be set forth in written policies and should follow processes put in place
2. should use 3rd party to conduct investigation when
   - misconduct involves sensitive issue
   - when employee accused of misconduct is high level executive or manager

Question 32

vail letter

Answer 32

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

Question 33

FMLA

Answer 33

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