CHAPTER SIXTEEN The Right to Privacy and Other Protections from Employer Intrusions

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved Employees have an absolute right to privacy in the workplace 2.It is a breach of an employee’s right to privacy for an employer to ask with whom the employee lives 3.In the private sector, the Constitution protects employees’ right to be free from unreasonable searches and seizures Myths about Employee Privacy Rights

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved Without constitutional protection, employees in the private sector are left with no protection against invasion of privacy 5.Once an employee gives information to an employer, the employer may use it for whatever purpose it desires

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved Are There Guarantees in Life?  A fundamental right is one guaranteed by the Constitution, whether stated or not  Required disclosure of some types of personal information has been considered unreasonable search  Employees are concerned about who has access to information gathered by employers

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved Public Sector Employee Privacy  Federal, state and local employees are protected from government intrusion  Constitutional protection –The Fourth Amendment protects against unreasonable search and seizure  Collection of personal information has been considered a search  Detaining an employee may lead to charges of false imprisonment

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved –The 5 th and 14 th amendments protect employees’ rights to privacy  Court has not addressed the right to be free from mandatory preemployment medical tests –The Privacy Act of 1974  Restricts governmental intrusion into the lives of federal employees by limiting the disclosure of employee information  Allows for criminal penalties and civil remedies –Privacy Protection Study Commission  Established to study the possibility of extending the Privacy Act to private sector

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved –Federal wiretapping – Title III  Authorizes acquisition of evidence of a crime  Does not authorize interceptions related to social or political views –Electronic Communications Privacy Act  Extended wiretapping prohibition to include all forms of digital communications  Prohibits unauthorized eavesdropping by all persons and businesses, not just the government

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved Private Sector Employee Privacy  Constitution protects citizens from government excesses  Private sector employees may seem to be defenseless  Other bases for right to privacy in the private sector –Some state legislatures have enacted privacy statutes protecting private employees in certain situations

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved –Tort law protections  Intrusion into seclusion  Public disclosure of private facts  Defamation  Publication in a false light  Breach of contract –Employers may regulate employees’ off-work activities only when workplace performance is affected  Not all information is protected by the right to privacy –Job applicants are most vulnerable

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved Employer’s Information- Gathering Process  An employer may be liable for the process used in gathering, storing or using information  Technology allows electronic surveillance of employee activities –Surveillance by glitch –Surveillance by default –Surveillance by design –Surveillance by possession

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved  Many firms monitor Internet use  While monitoring employee usage is usually legal, employers should notify employees –Employers should develop policies regarding the use of company computers –Such policies should be communicated through policy and procedure manuals, memos, and employee handbooks –Policies should contain the principles of openness, disclosure, secondary usage and correction

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved Waivers of Privacy Rights  A waiver would exempt the employer from liability for employee claims about privacy issues  Valid waivers must be voluntarily given  Approved waivers contain some form of consideration  Waivers should not be requested prior to a job offer

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved Management Considerations  Employers may search employees’ property where no expectation of privacy exists  Investigate state statutes in the states in which you do business  Any waiver of privacy should be accompanied by an offer of employment  Regulate access to personal information