Workplace Privacy PowerPoint

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National Labor Relations Act
It shall be an unfair labor practice for an
employer to refuse to hire, or fire or to
otherwise discriminate against an employee in
regard to any term or condition of
employment in order to discourage
membership in any labor organization…or to
…interfere with, restrain or coerce employees in
the exercise of their rights to form or assist labor
unions and to engage in concerted activities
for the purpose of collective bargaining or
other mutual aid or protection.

4. National Labor Relations Act (NLRA)
guarantees employee concerted speech
and conduct on and off the job but
employee can be fired for interfering with
customer relations or harm company
reputation.
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5. General Counsel alleges terminating
employee who complains about
supervisor on Facebook is an unfair
labor practice because it doesn’t allow
for concerted activity (legally-protected
speech).
Settled: February, 2011
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6. “Employee” means any employee, but not an individual
employed as a supervisor.
“Supervisor” means any individual having authority, in the
interest of the employer, to hire, transfer, suspend, layoff,
recall, promote, discharge, assign, reward, or discipline other
employees, or to responsibly direct them, or to adjust their
grievances, or effectively to recommend such action, if the
exercise of such authority is not a merely routine or clerical
nature, but requires the use of independent judgment.
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7. Common law recognizes a “right to privacy” in a claim for
invasion of privacy
Unreasonable intrusion into a person’s private affairs which
causes outrage or mental suffering, shame or humiliation to an
ordinary person (reasonable person)
This intrusion can be made physically, or by use of a person’s
sense to oversee or overhear the person’s private affairs.
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8. The intrusion must be “highly offensive to a
reasonable person.”
Does the person have a “reasonable
expectation of privacy?”
Expectations of privacy are established by
general social norms
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9. Reasonable expectation of privacy exists
in an office. Hospital searched
physicians office in connection with a sex
harassment investigation. Items from
inside his desk and file cabinet were
taken.
Valentine’s Day Card
Photograph
Book of Poetry
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10. Items were used in a disciplinary proceeding.
Doctor was terminated for violating hospital’s
non-fraternization policy.
Court finds public employers have a
reasonable expectation of privacy at work, at
least in his desk and file cabinet.
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11. • A person’s body
• Medical condition or treatment history
• Financial information
• Political affiliation
• “Private” possessions – lockers, desks, brief cases, mail
• “Private” affairs – telephone and other information and
forms of electronic communication conversations
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12. Efficiency
Productivity
Personal Autonomy
Expectation of Privacy
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EmployeeEmployer

13. Workplace searches are governed by
a reasonableness standard
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14. Desk search and termination upheld
• Employer engaged in an investigation about
questionable telephone bills
• Desk drawers were often unlocked
• Desk mates had keys to desk
• Files stored in desks related to work activities
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15. No “reasonable expectation” of privacy
• Public records
• Arrest and conviction records
• Legal residence
• Description of vehicle (DMV records)
• Marriages, divorces, births
• Arrest and convictions of family members
• Matters exposed to the public
• Physical appearance
• Finger prints
• Hair samples
• Other physical characteristics
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Off-Duty Internet Activity
City of San Diego v. Roe
(US Supreme Court, 2004)
Police officer engaged in sexually explicit conduct
over a commercial website was not engaging in
speech of a public concern.
Speech of a “public concern” is a subject of legitimate
news interest, a subject of general interest and value
to the public.”

17. Wiegand v. Motiva Enterprises (US District Court, 2003)
Store manager engages in an internet business in his
home on his own time that promotes anti-black books,
videos and music and that sells Nazi paraphernalia. The
employer determines that the manager’s internet
business was inconsistent with its core values and fires
him.
Manager alleges that First Amendment right to free
speech provides a “clear mandate of public policy”
prohibiting discharge. Court assumes that such a claim
can be brought, but finds on-balance it is not a wrongful
discharge.
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19. Needs of the employer or public are
balanced against employees expectation of
privacy, i.e.: random drug testing of
employees in safety sensitive job
Hennessey v. Coastal Eagle Point Co. (1992)
• Private sector random testing should be limited to
safety sensitive jobs
• Notice is required
• Means and methods of selection for testing must
be communicated
• Testing must be confidential
• Written policy widely disseminated, including retest
at employee’s expense
• Employee must be aware of consequences
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20. • Amount of supervision and training
• Accident rates
• Authoritative Publications
• Regulations
• Public exposure
• Likeliness of harm
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21. Landscaper holds “safety-sensitive” job.
• Vehicles and motorized equipment
• Unsupervised
• Underwent safety-training
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22. Expectation of Privacy can be Diminished
by the Workplace Environment
• “Personal” telephone conversation in a
common work space versus conversation
behind closed office door
• Applying for a job requiring reference
checks versus random inquiries into the
lives of current employers
• Locker with lock provided by employer
that retains combination versus lock
purchased by employee without disclosing
combination to employer
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23. Warnings and Written Policies Can
Diminish Expectation of Privacy
• Locker searches
• Desk Audits
• E-mail monitoring
• Drug Testing
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24. Drug testing policy printed on job
application was sufficient notice to
waive expectation of privacy.
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25. Telephone Monitoring
E-mail/Internet
Electronic Monitoring and Surveillance
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26. Employers can regulate the use of
workplace computers
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27. Employer can monitor internet browsing
history. Relies on Stengart.
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28. Federal and state wiretapping laws
prohibit interception of wire, oral or
electronic communications.
The law also imposes liability for accessing
stored messages without authorization.
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29. Most courts that have decided the issue have
held that an employer can not intercept a
telephone conversation or an e-mail or
access an e-mail in storage.
Exceptions:
The “provider” exception applies to service
providers if interception occurs in the
ordinary course of business
The consent exception (express or implied)
Monitoring in the “ordinary course of
business” (Employer must have a legitimate
business reason)
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30. Most monitoring is done in “the ordinary
course of business.”
A policy that is widely distributed meets
the “consent” exception.
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31. “Authorized user” exception applies
when a Facebook “Friend” voluntarily
provides Facebook posts to an
employer.
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32. Ehling is a para-medic who posts the following on Facebook to “friends-
only.”:
An 88 yr old sociopath white supremacist opened fire in the Wash D.C.
Holocaust Museum this morning and killed an innocent guard (leaving
children). Other guards opened fire. The 88 yr old was shot. He survived. I
blame the DC paramedics. I want to say 2 things to the DC medics. 1.
WHAT WERE YOU THINKING? And 2. This was your opportunity to really
make a difference! WTF!!!! And to the other guards…go to target
practice.
A co-worker “friend” of Ehling sent the post to a supervisor.
The implication from the post was that the paramedics should have let
the assailant die at the scene. In response, the employer notified the New
Jersey Board of Nursing and the New Jersey Department of Health, Office
of Emergency Medical Services. The notification expressed concern with
employee’s Facebook posting, which led to the employee’s discharge for
showing disregard for patient safety.
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33. City of Ontario, California v. Quon
U.S. Supreme Court (2010)
Police force gives pagers to officers to communicate
instantly at work. Contract with provider has a
monthly limit. Excess messages are billed to city.
Electronic Communications Policy:
“[City] reserves the right to monitor and log all
network activity including email and Internet use,
with or without notice. Users should have no
expectation of privacy or confidentiality when using
those resources.”
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34. Police Dept. made clear that text messages
would be treated the same as emails.
Officer consistently exceeds the contract’s
limitations and supervisor reviews transcripts.
Assuming officer had a reasonable
expectation of privacy the “search” was
reasonable.
Legitimate work-related investigation.
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35. Employer is liable for wrongful termination
after it coerced employee to provide
password to personal MySpace account
Electronic Communications Privacy Act
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36. No employer shall require or request a
current or prospective employee to
provide or disclose any user name or
password, or in any way provide the
employer access to, a personal account
through an electronic communications
device (computer, phone, pad)
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37. “Personal account” means an account,
service or profile on a “social networking
website” that is used exclusively for personal
communications unrelated to any business
purpose of the employer.
Does not apply to accounts, services or
profiles created, maintained, used or
accessed by a current or prospective
employee for business purposes of the
employer or to engage in business related
communications.
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38. • Ensuring compliance with applicable
laws, regulatory requirements or
prohibitions against work-related
employee misconduct
• Unauthorized transfer of proprietary or
confidential information or financial data
Based on specific information
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39. Applies to background checks and
investigations conducted by certain
third-parties
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40. Communications made to an
employer by third parties in
connection with an investigation of:
1. Suspected misconduct relating to
employment, or
2. Compliance with laws, regulations or
written policy
Are not “consumer reports.”
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41. Employers must take reasonable efforts
to prevent identity theft
 Storage
 Destruction
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42. Americans with Disabilities Act
Genetic Information Non-Discrimination
Act
Health Insurance Portability and
Accountability Act (HIPAA)
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43. • Employer can not use genetic
information, including family medical
history
• Medical inquiries and workers’
compensation claims history can not be
used as basis for hiring
• Use of sick days can not be used for a
hiring decision
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44. Employer may disclose information
about a former employee when
responding in good faith to the specific
inquiries of a third party regarding former
employee’s qualifications
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45. • Can not be publicly displayed
• Can not be posted
• Can not be visible on a mailing
Can:
Be used to verify employment
Be used consistent with law
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46. Breast Feeding/Expression of mother’s milk
Dress Codes
Grooming Codes
Sexual Orientation
Domestic Partnership or Civil Union Status
Gender Identity or Expression
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Questions?