Privacy in the workplace is a growing concern as new technologies make it possible for employers to monitor virtually all aspects of a job.
Similarly, the potential for employee misuse of the company’s confidential and trade secret information has increased. To further complicate the matter, the state and federal governments have imposed numerous laws that require employers to take certain steps to protect their employees’ privacy under specific circumstances.
The following are examples of some privacy issues that arise before, during and after the employment relationship.
Pre-employment issues
- Background checks. Employers may retain a third-party to perform background checks on potential employees for use in hiring decisions if the individual is aware that the information obtained may be used for employment purposes and the individual agrees to such use. The employer must notify the individual promptly if the information discovered from the background check may result in an adverse employment action.
- Medical examinations. The Americans with Disabilities Act prohibits pre-employment medical examinations until a conditional offer of employment is made. Employers are required to collect and separately maintain as confidential all information from employee medical examinations and inquiries.
- Drug testing. Drug testing is not considered a medical exam and is permitted as a screening device.
On-the-job issues
- E-mail/Internet. Under the Electronic Communications Privacy Act, an employer has the right to monitor e-mail and Internet surfing that occurs on an employer-provided computer system. Management should inform employees of the company’s policy regarding monitoring of e-mail, Internet use, instant messaging and other electronic communications.
- Phone systems. Phone monitoring is allowed if the employee is notified in advance. Under certain circumstances, employers should discontinue monitoring upon discovering a call is personal.
- Video surveillance. Federal law allows video surveillance in publicly-accessible areas. Employers should refrain from introducing video surveillance in areas with legitimate expectations of privacy, such as restrooms and changing rooms.
- Camera phones. Camera phones may cause privacy concerns due to their potential to harass and annoy, as well as their potential to record confidential information and send it instantly outside the workplace. Employers should adopt policies that encourage appropriate behavior or restrict the use of camera phones in the workplace.
- Health information. The Health Insurance Portability and Accountability Act (HIPAA) requires employers that have access to employee health information to take specific steps to ensure such information is kept confidential and is only disclosed on a need-to-know basis. Failure to follow HIPAA’s exacting requirements can lead to fines against the company and the offending individual and even lead to jail time.
Postemployment issues
- Trade secret misappropriation. The vast majority of trade secret misappropriation occurs when an employee is separated from his or her employment. Accordingly, employers should implement procedures to prevent such misappropriation. For example, employers should conduct exit interviews in which separated employees are reminded of their obligation not to disclose confidential information. Further, the employer should make sure to coordinate the return of any trade secret and other confidential materials (e.g. customer lists).
- References. Although employers enjoy a qualified privilege when making job references, to avoid any potential privacy or defamation claims, it is advisable to limit any response to reference requests to information concerning an employee’s dates of employment, last position held and salary at termination.
Business owners, managers and supervisors should be aware of the issues outlined above and their own company policies regarding privacy in the workplace, especially as technology continues to evolve. For information regarding specific questions about workplace confidentiality issues, contact your attorney.
THOMAS J. WIENCEK is a partner at Brouse McDowell and chair of the firm’s Labor Group. He is also a specialist in labor and employment law. Reach him at (330) 535-5711 or [email protected].
