Safety vs. privacy
How far can you go to make your workplace safe — without infringing on the privacy of your employees?
Why you need a workplace search policy
Employees tend to view their desks, lockers, toolboxes or workbenches as private spaces.
These items, however, generally are the property of the employer, which may need to conduct a workplace search of them if it has a reasonable concern such as a drug problem or theft of company property. That raises the issue of invasion of privacy.
To reduce the likelihood of an invasion of privacy claim resulting from a workplace search, you should establish and post a broad search policy stating that:
* All furniture and equipment made available to employees in the course of their employment is and remains the property of the employer.
* The employer is not responsible for the loss of or damage to employees’ personal property brought into the workplace.
* The employer reserves the right to inspect and search its furniture and equipment, as well as any other thing or person in the workplace.
* Employees have no expectation of privacy in respect to the furnishings, equipment and other items used in or brought into the workplace.
* There are consequences for refusing to comply with the policy.
Searches conducted under such a policy should be limited to workplace necessity and conducted only upon the written authorization of someone in senior management. Any search should be conducted with as much sensitivity to employees’ privacy concerns as is reasonable under the circumstances.
When your company has a written policy and a justifiable reason for a search, and when employees understand the need for such action, employees are less likely to claim privacy invasion — especially when you conduct the search in a manner that respects employee dignity.
James G. Seaman
Surveillance in the workplace
The courts generally hold employers responsible for providing a workplace that is free of sexual harassment.
To reduce their vulnerability to harassment litigation and promote a professional work environment, employers increasingly are monitoring their employees’ use of telephones and e-mail, and videotaping their activities on the job. But in Pennsylvania, there are legal restrictions.
The Pennsylvania Wiretap Act and the Federal Electronic Communications Privacy Act generally prohibit the interception of employee telephone calls as an invasion of privacy. The law does, however, allow you to listen to employee calls as long as you’re doing so to carry out a legitimate business function, e.g., to protect trade secrets or for training, quality control or supervisory purposes.
Keep in mind these qualifications:
1. You can intercept only business calls. Once you become aware a call is personal, you must stop listening.
2. If you disclose to a third party what an employee said on the telephone during a monitored business conversation, you may be held liable for punitive damages.
While you generally can videotape your worksites and monitor employee e-mail, you need to consider the risks. For example, using a videotape recorder could constitute illegal wiretapping if the recorder’s microphone is on. Similarly, e-mail monitoring imposes certain confidentiality obligations.
Keep medical information confidential
If your business possesses information about your employees’ health, you could be held liable if you don’t adequately protect that information.
Consequently, you should develop a policy for maintaining and protecting the confidentiality of employee medical records, including records pertaining to job-related examinations and employee assistance programs. The Americans with Disabilities Act imposes strict rules for handling information obtained through employee medical exams.
In addition, the law requires you to keep family and medical leave records and requests confidential. Consider these rules when handling employee medical documents:
* Store employees’ medical records in a locked file at a location separate from other employee personnel files.
* Only human resources personnel and management staff with a business-related need to know should have access to medical records.
* Disclose medical information about employees only to inform supervisors about necessary restrictions on an employee’s duties and about accommodations; to inform first aid and safety workers about an employee’s disability if the employee requires emergency treatment; and to provide medical information as required by law or with the consent of the employee.
* No business should voluntarily respond to a request for confidential personnel documents from an outside organization. If you receive such a request, consult with your legal counsel immediately.
Christine M. Gass
Drugs and employee privacy
You as the employer have a legitimate interest in ensuring that your employees, especially those driving, working with children or operating heavy equipment, are drug free. However, your interest in a drug-free work place must be balanced against the privacy rights of your employees.
Here are some guidelines private sector employers should follow when creating a drug-testing policy:
* You are entitled to ask job applicants about current drug use, but you can’t require them to take a drug test until you make a job offer.
* You may require an employee to take a drug test if you have a reasonable suspicion that he or she reported to work under the influence of drugs or alcohol. You also may test an employee who is involved in an on-the-job accident.
* Random drug tests are the type that employees are most likely to challenge. For example, an employee who is discharged for failing or refusing to take a random drug test might challenge the discharge in court. Courts do permit random tests as long as they are administered under a reasonable policy that doesn’t unduly intrude on employee privacy rights. Test results should be held in strict confidence.
Make sure your policy is clear. Keep in mind drug-testing laws vary from state to state and an employer should seek legal counsel in drafting a policy.
And if your work force is unionized, take steps to avoid breaching the collective bargaining agreement or violating the Labor Management Relations Act.
Allan W. Brown
Law briefs is written by attorneys from Pittsburgh-based law firm Eckert Seamans Cherin & Mellott LLC.