Flashcards in Chapter 11: Workplace Privacy Deck (29)
What are the three relevant torts to employee privacy?
1. Intrusion upon seclusion
2. Publicity given to private life
What is intrusion upon seclusion?
One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.
What is publicity given to private life?
One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person and (b) is not of legitimate concern to the public.
What is defamation?
A communication tending “so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.
What federal laws with employment privacy implications regulate benefits related information?
What federal laws with employment privacy implications regulate data collection and record keeping?
4. Whistleblower Protection Act
7. Securities Exchange Act of 1934
What federal laws with employment privacy implications regulate monitoring practices?
1. Employee Polygraph Protection Act of 1988
2. Wiretap Act, Electronic Communications Privacy Act, and SCA
Which federal agencies protect employee privacy?
The DOL 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 health care beneﬁts, helping employers ﬁnd workers, strengthening free collective bargaining, and tracking changes in employment, prices, and other national economic measurements.
The EEOC prevents...
discrimination in the workplace.
The FTC and CFPB regulate...
unfair and deceptive trade practices.
The NLRB conducts...
elections and investigates and remedies unfair labor practices.
What is the ADA?
The Americans with Disabilities Act of 1990
What does the ADA do?
It created important restrictions on medical screening of candidates before employment. The law forbids employers with 15 or more employees from discriminating against a “qualiﬁed individual with a disability because of the disability of such individual,” and speciﬁcally covers “medical examinations and inquiries” as grounds for discrimination. Before an offer of employment is made, the ADA permits such examinations and inquiries only where “job related and consistent with business necessity."
When may a company require a medical examination after an offer of employment, and condition the offer on the results of the examination?
1. All entering employees are subjected to such an examination regardless of disability,
2. Conﬁdentiality rules are followed for the results of the examination, and
3. The results are used only in accordance with the statutory prohibitions against discrimination on the basis of disability.
The ADA requires an employer to provide what?
Reasonable accommodations to qualified individuals who are employees or applicants for employment, unless to do so would cause undue hardship.
Under the FCRA, when can an employer obtain a consumer report or an investigative consumer report?
When there is a permissible purpose.
What is a permissible purpose?
1. Preemployment screening for the purpose of evaluating the candidate for employment, and
2. Determining if an existing employee qualiﬁes for promotion, reassignment or retention.
What is a investigative consumer report?
Is a report in which some of the information is acquired through interviews with neighbors, friends, associates or acquaintances of the employee, such as reference checks.
What standards must an employer meet in order to obtain a consumer report?
- Provide written notice to the applicant that it is obtaining a consumer report for employment purposes and indicate if an investigative consumer report will be obtained
- Obtain written consent from the applicant
- Obtain data only from a qualiﬁed consumer reporting agency, an entity that has taken steps to assure the accuracy and currency of the data
- Certify to the CRA agency that the employer has a permissible purpose and has obtained consent from the employee
- Before taking an adverse action, such as denial of employment, provide a pre-adverse-action notice to the applicant with a copy of the consumer report, in order to give the applicant an opportunity to dispute the report
- After taking adverse action, provide an adverse action notice.
What is the ICRAA?
California Investigative Consumer Reporting Agencies Act
What must employers do under the ICRAA?
1. Notify applicants and employees of their intention to obtain and use a consumer report.
2. Once disclosure is made, the employer must obtain the applicant or employee’s written authorization prior to requesting the report.
3. On the notice and authorization form, employers must enable applicants and employees to check a box to receive a copy of their consumer report any time a background check is conducted.
4. If employers wish to take adverse employment action, they must provide the employee with a copy of the report, regardless of whether the employee waived the right to receive a copy.
Does the FCRA preempt states from creating laws in the area of employment credit history checks?
What does the EPPA do?
Prohibits employers from using lie detectors on employees or to screen applicants.
What exceptions are there to the EPPA?
The EPPA has exceptions for certain occupations such as government employees, etc.
What are some reasons for monitoring employees in the workplace?
1. Follow workplace safety and other laws that require or encourage monitoring
2. Protect physical security (such as video cameras near entrances) and cybersecurity (such as activity on computer systems)
3. Protect trade secrets
4. Limit liability for unlicensed transmission of copyrighted material and other conﬁdential company information
Improve work quality, such as by monitoring service calls with customers
5. Try to keep employees on task rather than spending time on personal business, such as surﬁng the web
Under the TCPA when is interception of employee communications permitted?
1. If a person is a party to a call or where one of the parties has given consent.
2. The interception is done in the ordinary course of business.
What is DLP?
Data Loss Prevention