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  • 1. PRIVACY IN THE WORKPLACE Nicole Griffin Farrell Tuesday, May 6, 2014 The Little America Hotel 26th ANNUAL EMPLOYMENT LAW SEMINAR parsonsbehle.com
  • 2. 2  Privacy rights are implicated in numerous ways in the workplace: – Pre-Employment/Background Checks – Employment Testing – Personnel Records/Medical Records – Sensitive information – Monitoring and Surveillance – Social Media – Post-employment references Overview
  • 3. 3 Overview
  • 4. 4  In analyzing whether an employee’s right to privacy was violated, courts generally consider whether: – The employee had a reasonable expectation of privacy – Notice? – The employer’s actions intruded on employee’s reasonable expectation of privacy, and if so, to what extent – The employer had a legitimate business reason for its actions Framework for Analyzing Privacy
  • 5. 5  Were the employer’s actions too invasive for what it was trying to accomplish? Framework for Analyzing Privacy
  • 6. 6  Purposes – Verify information on employment application – Ensure applicant or employee not involved in criminal conduct or other misconduct – Investigate suspected criminal conduct – Decrease risk of “negligent hiring” claim Background Checks
  • 7. 7  Internal  External – Subject to the Fair Credit Reporting Act, 15 U.S.C. section 1681 – Consent is an affirmative defense to an invasion of privacy claim Background Checks
  • 8. 8  Utah Code Ann. section 34-46-202  Restricts when can ask for (1) social security number (2) driver’s license number and (3) date of birth prior to when applicant offered a job. Utah Employment Selection Procedures Act
  • 9. 9  Drug Testing of Applicants and Existing Employees  Pre-Employment Testing  HIV or AIDS Tests  Mental/Physical Tests Testing of Applicants or Employees
  • 10. 10  In Utah, governed by the Utah Drug and Alcohol Testing Act (“UDATA”), Utah Code section 34-38-1 to 34-38-15.  Applies to all private employers, regardless of size Drug Testing – “UDATA”
  • 11. 11  UDATA requires that any drug or alcohol testing must: – Be paid for by the employer – Occur either during or immediately after the employee’s regular work period – Be deemed work time for compensation purposes Drug Testing – “UDATA”
  • 12. 12  Under UDATA, employers may conduct drug and alcohol tests to: – Investigate possible employee impairment – Investigate workplace accidents or theft – Maintain safety for employees or the public – Maintain: productivity, product or service quality, or security of property or information Drug Testing – “UDATA”
  • 13. 13  Employers may only collect drug and alcohol tests consistent with the terms of a written policy.  Employers must: – Distribute the policy to employees – Have the policy available for review by applicants Drug Testing – “UDATA”
  • 14. 14  In general, UDATA provides employers protection if they have established a policy and initiated a testing program that complies with UDATA Drug Testing – “UDATA”
  • 15. 15 Genetic Testing  Genetic Testing Privacy Act – Utah Code Ann. section 26-45-103 – In general, an employer may not, in connection with hiring, promotion, or retention or related decision (a) access or otherwise take into consideration private genetic information; (b) request or require an individual to consent to releasing information; (c) request or require an individual or his or her blood relative to submit to genetic testing; (d) inquire into or otherwise take into consideration that individual or blood relative has taken or refused to take genetic test.
  • 16. 16  HIV and AIDS Tests  Medical and Physical Examinations  Psychological or personality tests  Polygraph tests Other Pre-Employment Testing
  • 17. 17  Should be treated as confidential records belonging to the employer  Maintain in a secure location  Make available only to those with legitimate need to access files  Employee access issues Personnel Records
  • 18. 18  All employers should treat employee medical or health information as private and confidential  ADA requires employers to keep records confidential and store them separately  May only be revealed to certain individuals Medical Records
  • 19. 19  HIPAA  GINA  Both require that employees’ health related information be treated in a confidential manner Medical Records
  • 20. 20  Social security numbers  Employment Selection Procedures Act, Utah Code Ann. section 34-46-202. – Requires employers to have policy on confidentiality, maintenance and retention of records Sensitive Personally Identifiable Information
  • 21. 21  A growing number of employers track employees’ electronic communications, like phone calls, emails and Internet usage while at work.  Reasons for doing this include to maintain productivity, ensure compliance with policies (like no sexual harassment), prevent disclosure of trade secrets, protect employer’s reputation. Monitoring and Surveillance
  • 22. 22  Federal law permits employers to monitor Internet or e-mail usage as long as: information is stored on employer-provided service; review is authorized by own policies.  In invasion of privacy case arising in these situations, courts consider and weigh various factors. Monitoring and Surveillance
  • 23. 23  Legal risks – Invasion of privacy claims – Labor issues – Discrimination claims Monitoring and Surveillance
  • 24. 24  Internet Employment Privacy Act, Utah Code Ann. section 34-48-101 et seq.  Generally speaking, employer may not ask applicant or employee to disclose Internet passwords or take adverse actions for failure to disclose.  Subject to exceptions Requiring Disclosure of Electronic Account Access Information
  • 25. 25  Monitoring of telephone calls  Video surveillance of employee behavior on the job  GPS Monitoring and Surveillance
  • 26. 26 Monitoring and Surveillance
  • 27. 27  Generally, employers have a right to search an employee’s workspace, including desk, office, and common areas.  At least one court has held, however, that an employee has expectation of privacy in his briefcase even though it was abandoned in former employer’s office. Searching Employee Surroundings
  • 28. 28  National Labor Relations Act prohibits employers from taking certain actions against employees who engage in concerted activities of either (a) collective bargaining and (b) other mutual aid or protection.  Employers must be wary of implementing monitoring programs that could be viewed as infringing on those rights. Monitoring and Employee NLRA Rights
  • 29. 29  Employer Reference Immunity Act  Utah Code Ann. section 34-42-1  An employer who in good faith provides information about the job performance, professional conduct, or evaluation of a former or current employee to a prospective employer of that employee, at the request of the prospective employer of that employee, may not be held civilly liable for the disclosure or the consequences of providing the information. Post-Employment References
  • 30. 30 Thank You  Nicole Griffin Farrell direct: 801.536.6729 email: nfarrell@parsonsbehle.com