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8thedChap014TFC082014FinalinPPT2010.pptxChapter 14 The Employee’s Right to Privacy, and Management of Personal Information
Copyright 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.
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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
Understand the legal concept of “reasonable expectation of privacy” and its application to the workplace
Apply the standard for unreasonable searches and seizures under the Fourth Amendment
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Learning Objectives (2)
Explain the distinctions between 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, and the key business justifications for employee monitoring
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?
The right “to be left alone”
Privacy as a federal constitutional right
Griswold v. Connecticut 1965
“penumbras” of the Bill of Rights
Emper legitimate interests v. Empee privacy
Global marketplace different rules elsewhere
Even if Employer may collect data, duties to safeguard Employees’ personal information
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Realities about Employee Privacy Rights (1)
Employees do not have an absolute right to privacy in their workplace
Balancing test
In the private sector, the federal Constitution does not protect employee right to be free from employer unreasonable searches and seizures
Contrast public-sector where government is employer
Some states (CA) have right to privacy in state Constitution
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Realities about Employee Privacy Rights (2)
All employees are safeguarded to some extent by common law protections against invasions of privacy
Any time an employee gives information to an employer, the employer is bound to use it only for the purpose for which it was collected, and may not further disseminate it without employee’s permission
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Background
Privacy may be protected by
Constitution (federal or state)
federal and/or state statutes
common law principles (will vary by state)
Fundamental rights: A 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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Workplace Privacy, Generally (2)
No broad rights to personal workplace privacy
No comprehensive federal workplace privacy legislation exists
States will vary widely in their coverage
Review: Employees may be fired at-will (provided it is not for illegal reasons)
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Zones of Workplace Privacy
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“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
Public-Sector Employee Privacy(1)
Review: government as employer means federal Constitutional protections apply
The Fourth Amendment: protection against unreasonable searches and seizures
Violation if the search is ‘Unreasonable’
Unjustified at its inception
Impermissible in scope as carried-out
Case: O’Connor v. Ortega
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Public Sector Employee Privacy (2)
Search warrant usually required
Exception: strong state interest and pervasive regulation of industry
Balancing test of legitimate interests: e.g., drug testing of railway workers for safety
Search of employer-owned property: written policy can reduce employee’s reasonable expectation of privacy (lockers, computers)
False imprisonment concern
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Public Sector Employee Privacy(3)
5th and 14th amendments tests
‘Strict scrutiny’ of fundamental rights requires ‘compelling state interest’ justification (high hurdle)
Other rights: search must be ‘rationally related to a valid state interest’ (low hurdle)
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
Regulates the release of personal information about federal employees by federal agencies
Basic principles
Employee access to their files
Mechanism to correct or amend information
Prevention of inappropriate revelation of information
Maintenance of information
Eleven exceptions to the act
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Wiretapping
Federal Wiretap Act – Title III
Governs the interception of oral, wire, and electronic communications related to specified criminal activity
Model for statutes in most states
Wiretapping on the rise, few applications denied
ECPA covers all forms of digital communication
Prohibits unauthorized eavesdropping, access to messages
‘in-transit’ limitation, ‘consent’ exception
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Private Sector Employee Privacy
In private-sector employment environment:
No constitutional protection triggered
Less privacy protection, unless provided by policy or collective bargaining contract (union workplace)
Compliance-related costs for private employers
Private-sector employers’ flexibility to craft policies that suit need and company culture
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Legal Framework for Employee Rights in the Private Sector
At-will employment review: 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
State and federal laws prohibiting adverse employment action, e.g., for discriminatory reasons
Employment at-will limited by certain statutes and common law
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Bases for Right to Privacy in the Private Sector (1)
State law-based claims – generally little statutory protection for private employees
Contrast: some state constitutions and statutes (CA)
Common law torts: ‘tort’ is a private wrong in which one person (e.g. employer, here) causes injury to another person
Allows the injured person to sue the alleged wrongdoer and to collect damages
The injury can be physical, mental, or financial
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Bases for Right to Privacy in the Private Sector (2)
Privacy Protections at common law (torts)
Intrusion into Seclusion
Wrongful invasion – objectionable to a reasonable person
Scenario 1
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: Yoder v. Ingersoll-Rand Company a.k.a. ARO
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Bases for Right to Privacy in the Private Sector (3)
Privacy protections at Common Law (continued)
Publication in a false light
Public disclosure of facts that place the employee in a false light
Defamation
Libel vs. slander
Compelled self-disclosure
Breach of contract
Per policies or specifics of employment agreement or CBA
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Regulation of Employee’s Off-Work Activities
Generally, private activities may be regulated if off-work conduct affects employee performance
E.g., drug, tobacco, alcohol use, weight, various recreational activities, moonlighting, relations with co-workers or competitors, ‘poor reflection’ conduct
State statute exceptions limit employer reach
NY case: dating not ‘recreation’ (?) within state statute
Don’t ignore ‘carrot’ approach, e.g., incentives
General note: U.S. companies with operations in EU must comply with its data protection laws
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Employer’s Information-Gathering Process/Justified Use/Disclosure of Information
Proper documentation is important HR function
Risks in process of information gathering
Harassment
Improper data management
Improper dissemination of information
Function creep: expands uses beyond purpose
Collection and retention should be conscious policies
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Employer’s Information-Gathering Process/Justified Use, Disclosure of Information
Collection and retrieval of information
Limitation of questions to potential employee
Proper storage of information
‘BYOD’: employee personal devices in workplace -> further complication of management
Transfer of info, e.g., References
Admin password abuse
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Employee Monitoring: Old Practice, New Face
Employer monitoring has rich tradition and raises legal, ethical concerns
New technologies dramatically increase data volume, reach, power and range of issues
Productivity measurements emphasis (currently)
Boundary-less workplace: “always-on”
New technologies: GPS, RFID, Biometric ID
Ubiquity of Social Media
access to data and reliance on it
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Evolving Legal Environment (1)
Statutes and cases beginning to address surveillance and monitoring issues
Case: City of Ontario v. Quon
Balance of privacy and business justification interests
Business justification receiving weight in early cases, esp. re employer-issued instrumentalities
Courts favor ‘notice’ that reduces privacy expectations
State statutes limit compelled access (passwords)
Exemptions for specific justifications (e.g. investigations)
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Evolving Legal Environment (2)
Productivity-related monitoring, blocking
Boundary-less workplace also increases personal use of employer assets
Burgeoning availability of tools re keystrokes, voice patterns, screen caps, even fidget monitors. Scenario 3
Other business interests: evidence of employee misconduct, IP protection or liability, viruses, hacks, reputation-related issues
Policy clarity, employee notice key prevention
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Percentage of Large U.S. Companies That Monitor Employee E-mail
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The Case of Employee E-mail
Employers’ needs vs. employees’ right to privacy
Interception (ECPA) vs. hard drive monitoring
Cases suggest no reasonable expectation of privacy on employer instrumentalities, accounts
Even when policy and statements are otherwise (Harvard leaks case)
As always, policies should address corporate interests and practices (which then need to be followed through by employer)
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Developing Computer Use Policies
Policies – written, communicated to employees, and followed
Suggested guidelines
Appropriate coverage
Employee access to information gathered
Ban on continuous monitoring and secret monitoring
Only job relevant information collected
Only for business interests
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Blogging and Other Social Media (“Web 2.0”) (2)
Employer Social Media policy recommendations:
Defined objectives that do not overreach
A reminder that company policies apply
Personal comment rules
Disclosure, monitoring, and copyright reminders
Consider photo, video, audio coverage
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Privacy Rights Since September 11, 2001
USA PATRIOT Act
Allows government to monitor anyone on the Internet simply by contending that the information is “relevant” to an ongoing criminal investigation (FISA courts)
Employer response to governmental request for information: comply voluntarily, ask to seek employee permission or require subpoena
Monitor for future anti-terrorism measure and their implications for privacy
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Management Tips
Prevention is key: sound policy development, communication and follow-through are essential
Develop policies to reduce and define employee ‘expectation of privacy’
Monitor technology policies for developments (e.g., email, and IM, and next generations)
Gather and protect data pursuant to defined business purposes
Give ‘consideration’ for any employee waivers
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