HR 210 Bennett9e ppt ch14

1. Chapter 14
The Employee’s
Right to Privacy, and
Management of
Personal
Information
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Learning Objectives 1
• Describe the nature of privacy as a fundamental
right.
• Explain the three general ways in which privacy is
legally protected in the United States.
• Define the legal concept of a “reasonable expectation
of privacy” and its application to the workplace.
• Identify and apply the standard for unreasonable
searches and seizures under the Fourth Amendment.

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Learning Objectives 2
• Explain the distinctions between the protections for
public- and private-sector privacy protections.
• Describe the legal framework that applies to private-
sector privacy cases.
• Identify and differentiate the prima facie cases for
common-law claims of privacy invasions (intrusion
into seclusion, public disclosure of private facts,
publication in a false light, and breach of
contract/defamation).

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Learning Objectives 3
• Explain the extent to which an employer can legally
dictate the off-work acts of its employees.
• Discuss how advances in technology have impacted
employee privacy.
• State the key business justifications for employee
monitoring.

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Learning Objectives 4
• Explain the most effective means by which to design
and to implement a technology use policy.
• Describe the legal environment that surrounds
employee use of social media technologies.

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Are There Guarantees in Life?
• Recent inventions and business methods call
attention to the need for what is called the right “to
be let alone.”
• European employees generally enjoy a wider range of
freedom from employer intrusion in the workplace
than do U.S. employees.
• It is the employer’s responsibility to protect
employees’ and customers’ personal information.

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Background
Privacy may be protected by.
• Constitution (federal or state).
• federal and/or state statutes.
• common law principles.
Fundamental rights: Right guaranteed by the Constitution,
whether stated or not.
• Required disclosure of certain types of personal information
should be considered an unreasonable search.

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Realities about Employee Privacy Rights 1
• Employees do not have an absolute right to privacy in
their workplace.
• It is not a breach of an employee’s right to privacy for
an employer to ask with whom the employee lives.
• In the private sector, the Constitution does not protect
employees’ right to be free from unreasonable
searches and seizures.

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Realities about Employee Privacy Rights 2
• Without constitutional protection, employees are
safeguarded to some extent by common law protections
against invasions of privacy.
• Though an employee may give information to an
employer, the employer is still bound to use that
information only for the purpose for which it was
collected.

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Workplace Privacy, Generally
No broad rights to personal workplace privacy.
• No comprehensive federal workplace privacy legislation exists.
In almost every state, employees may be hired and
fired at will (provided it is not for illegal reasons).

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Zones of Workplace Privacy
“Reasonable” areas in which to expect
privacy in the workplace.
• One’s body and physical space; one has a reasonable expectation to be
free from a pat-down or body search.
• Normally private locations, such as a purse or briefcase.
• Personal information, accessed without permission.

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Public-Sector Employee Privacy1
Constitution protects individuals from wrongful
invasions by the state or by anyone acting on behalf of
the government.
Fourth Amendment: Protection against unreasonable
searches and seizures.
• Supreme Court has liberally interpreted “search” to
include a wide variety of activities.
• Retrieval of blood samples and other bodily invasions, including
urinalyses and collection of other personal information.

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Public Sector Employee Privacy2
For the search to violate the Fourth Amendment, it
must be deemed unreasonable, unjustified at its
inception, and impermissible in scope.
• Case: O’Connor v. Ortega.
All searches that are conducted without a judicially
issued warrant based on a finding of reasonable cause
are generally held to be unreasonable.

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Public Sector Employee Privacy3
Search of employer-owned property: Consent should
be obtained prior to the search, and employees should
be made well aware of the procedures involved.
• E.g., desks or lockers.
Employee may have a claim for false imprisonment
when being detained during a search.

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Public Sector Employee Privacy4
Fifth and Fourteenth Amendments tests.
• Strict scrutiny of fundamental rights requires compelling state
interest justification.
• State may impose any restrictions that can be shown to be
rationally related to a valid state interest.
• Is the right fundamental?
• Implicit in the concept of ordered liberty.
• Deeply rooted in this Nation’s history and tradition.
• No general right of the individual to be left alone.

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The Privacy Act of 1974 1
Regulates the release of personal information about
federal employees by federal agencies.
Basic principles.
• To restrict disclosure of personally identifiable records
maintained by agencies.
• To grant individuals increased rights of access to agency
records maintained on themselves.

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The Privacy Act of 1974 2
• To grant individuals the right to seek amendment of agency
records maintained on themselves that are inaccurate.
• To establish a code of “fair information practices.”
Right to privacy is not absolute.
• Extent of protection varies with the extent of the intrusion.
• Interests of the employee are balanced against the interests of
the employer.

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Privacy Protection Study Commission 1
Purpose.
• Studying the possibility of extending the Privacy Act to the
private sector.
Recommended that:
• Use of polygraph tests in employment-related issues be
prohibited.
• Pretext interviews be prohibited.

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Privacy Protection Study Commission 2
• Use of arrest or criminal records in employment decisions be
prohibited except where otherwise allowed or required by
law.
• Employers be required to use reasonable care in selection of
their investigating agencies.
• Federal Fair Credit Reporting Act provisions be strengthened.
Recommendations have yet to be implemented by
Congress.

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Wiretapping
Title III of the Federal Wiretap Act.
• Governs the interception of oral, wire, and electronic
communications related to serious criminal offenses.
• Basis for statutes in all states.
• Wiretapping is increasing.
• 17 percent rise in 2015.
• No state applications have been denied.

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Electronic Communications Privacy Act
(ECPA)
Covers all forms of digital communication.
• Includes transmissions of text and digitalized images, in
addition to voice communications on the telephone.
• Prohibits unauthorized eavesdropping, by all persons and
businesses, not only by the government.
• “Interception” applies only to messages in transit and not to
messages that have actually reached company computers.

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Private Sector Employee Privacy
In private-sector employment environment:
• Privacy rights in the private sector of employment are
limited.
• No constitutional protection is triggered.
Difference between public- and private-sector privacy
protections is compliance-related costs for private
employers.

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Legal Framework for Employee Rights in
the Private Sector 1
Employment-at-will.
• Employers are free to fire an employee, and employees are
free to leave the position, at any time and for any reason.
Protection for private-sector employees.
• Federal and state statutory protections, such as anti-
discrimination laws.
• Employment contracts, where they exist.

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Legal Framework for Employee Rights in
the Private Sector 2
• Collective bargaining agreements, where applicable.
• State law exceptions to employment-at-will.
• Violations of public policy.
• Breaches of implied contracts.
• Other statutory exceptions.

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Bases for Right to Privacy in the Private
Sector 1
Statutory Claims.
• Enacting legislation mirroring federal law regarding the
compilation and dissemination of information.
• Recognizing a constitutional right to privacy under their state
constitutions.
• Protecting employees only in certain areas of employment.
• E.g., personnel records or the use of credit information.
• Federal laws and the Constitution affording protection only to
federal employees and those subject to state action.

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Bases for Right to Privacy in the Private
Sector 2
Tort Law Protections/Common Law.
• Tort is a private (civil) wrong against a person or her or his
property.
• Publication as used in these torts means “bringing it to light”
or disseminating the information.
Privacy Protections at common law.
• Intrusion into Seclusion.
• Wrongful invasion that is objectionable to a reasonable person.
• Scenario 1.

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Bases for Right to Privacy in the Private
Sector 3
Public disclosure of private facts.
• Intentional or negligent public disclosure of private matters.
• Such disclosure would be objectionable to a reasonable person of ordinary
sensitivities.
• Case: Pemberton v. Bethlehem Steel Corp.
• Publication in a false light.
• Public disclosure of facts that place the employee in a false light.

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Bases for Right to Privacy in the Private
Sector 4
• Breach of contract.
• May be contested as an invasion of privacy by one’s employer.
• Defamation.
• Libel - Defamation in a written document.
• Slander - Defamation in an oral statement.

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Regulation of Employee’s Off-Work
Activities
Generally, private activities may be regulated if off-
work conduct affects employee performance.
• State legislations limit an employer’s reach.
Attitudes on workplace dating have the greatest
impact.
• Case: McCavitt v. Swiss Reinsurance America Corp.

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Employer’s Information-Gathering Process/Justified
Use/Disclosure of Information 1
Risks in process of information gathering.
• Harassment.
• Improper use of information.
• Improper data management.
Function creep: May begin with the voluntary
transmission of information by an individual for one
purpose for which the individual consents.

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Employee Monitoring: Old Practice, New
Face
• New technologies have dramatically increased the
range and power of the ways by which to gather the
information to which familiar ethical concerns
pertain.
• Boundary-less workplace: Lines between personal
and professional time, space, and equipment are
blurred.

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How Monitoring Works: Practice and
Prevalence
Employee theft has led both public and private
employers to increase monitoring of employees.
• “Retail shrinkage.”
Use of technology such as:
• Global Positioning System (GPS.)
• Radio frequency identification devices (RFIDs.)
• Biometric technology.
• Big Data collection.

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Evolving Legal Environment 1
Statutes and cases beginning to address employer
monitoring issues.
• Case: City of Ontario v. Quon.
• Balance of reasonable expectation of privacy and good business-related
justification of interest.
• Business justification for monitoring employees’ technology
use.
• Employers are particularly concerned about productivity loss due to
time spent online.
• Protection against liability.

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Evolving Legal Environment 2
• Inappropriate use of Web software - Danger of exposing the firm to
potentially significant copyright infringement liability.
• Obscenity - Poses both legal and reputational risks when employees
download pornographic images while at work.
Employers should develop a formal policy or program
regulating employee usage of the Internet.

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Case of Employee Email
Employers must ensure that the email system is not
being used in ways that offend others or harm morale.
• Review emails in connection with a reasonable investigation of
possible employee misconduct.
Employers should provide notification when emails are
being monitored.
• Notice of Electronic Monitoring Act.

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Percent of U.S. Companies Monitor Their
Employees’ Internet Use
Source: “The Rise of Workplace Spying,” The Week (July 5, 2015),
http://theweek.com/articles/564263/rise-workplace-spying.
Access the long description slide.

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Developing Computer Use Policies 1
Employers should develop concise written policies and
procedures regarding the use of company computers.
Suggested guidelines.
• No monitoring in highly private areas.
• Monitoring should be limited to the workplace.
• Full access to any information gathered through monitoring.
• Continuous monitoring should be banned.

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Developing Computer Use Policies 2
• All forms of secret monitoring should be banned.
• Advance notice should be given.
• Only information relevant to the job should be collected.
• Monitoring should result in the attainment of some business
interest.

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Bring Your Own Device (BYOD)
Employees increasingly use their personal
smartphones, tablets, or laptops for business purposes.
• Decreases company costs for devices, data, and IT support.
• Poses a number of practical and legal risks.
Challenges:
• Data stored on devices.
• Networks that the devices access.
• Secure approach – Virtualization.

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Blogging and Other Social Media
(“Web 2.0”)
Employer Social Media policy recommendations:
• Defined objectives that do not overreach.
• Reminder that company policies apply.
• Personal comment rules.
• Disclosure, monitoring, and copyright reminders.

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Waivers of Privacy Rights
Search: Physical invasion of a person’s space,
belongings, or body.
Waiver: Intentional relinquishment of a known right.
• Exists at all stages of employment.

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Privacy Rights Since September 11, 2001
USA Patriot Act.
• Expanded states’ rights with regard to Internet surveillance
technology.
• Grants access to sensitive data with only a court order rather
than a judicial warrant.
Government is now allowed to monitor anyone on the
Internet simply by contending that the information is
“relevant” to an ongoing criminal investigation.

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Management Tips 1
• Develop and publish policies that reserve your right
to monitor, gain access to, or disclose all emails in
your system.
• Ensure that any policy that applies to emails also
applies to instant messaging (IM).
• Ensure that the privacy policy accounts for these
social media technologies and strikes the right
balance between appropriate and inappropriate uses.

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Management Tips 2
• Privacy policy should be clear that employees have
no expectation of privacy in all employer-provided
equipment.
• Monitoring policies should be clearly stated.
• Avoid content-based and real-time monitoring.
• Be sure to investigate the specific protections for
which you are responsible in the states in which you
do business.

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Management Tips 3
• Your privacy policy should be targeted to protect your
business interests.
• Be wary of overrestricting since courts do not look on
these regulations positively.
• Consider focusing the policy of regulating the off-
work activities on the possible negative impact of off-
duty conduct on the employer’s business interests
and on the public’s perception of the employer.

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Management Tips 4
Less likely to find problems with a waiver of privacy
rights where the waiver is accompanied by an offer of
employment.
Ensure that you comply with all privacy rules required
by HIPAA.
Regulate access to information.
• Unwarranted disclosure might constitute an invasion of
privacy even where the original collection of information is
allowed.
Keep abreast of current developments.

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Percent of U.S. Companies Monitor Their
Employees’ Internet Use Long Description
Measured are three sets of data: tracking employee
emails (at about 42%); logging keystrokes (about 45%);
and monitoring employees' Internet usage (65%).
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