Chapter 14Chapter 14The Employee’s Right The Employee’s Right

to Privacy and to Privacy and Management of Management of

Personal Information Personal Information

McGraw-Hill/Irwin Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved.

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Learning ObjectivesLearning Objectives 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

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Learning ObjectivesLearning Objectives Identify and apply the standard for unreasonable

searches and seizures under the Fourth Amendment

Explain the distinctions between the protections for public- and private sector privacy protections

Describe the legal framework that applies to private-sector privacy cases

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Learning ObjectivesLearning Objectives 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)

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

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Learning ObjectivesLearning Objectives State 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?Are There Guarantees in Life? The right “to be let alone”

Privacy as a fundamental right

Employer’s need for private information

Global marketplace

Protecting employees’ personal information

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Realities about Employee Privacy Realities about Employee Privacy RightsRights

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 Realities about Employee Privacy RightsRights

Without constitutional protection, employees are safe guarded 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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BackgroundBackground Privacy may be protected by

Constitution (federal or state)

federal and/or state statutes

common law

Fundamental rights: A right that is 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, GenerallyWorkplace Privacy, Generally

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Workplace Privacy, GenerallyWorkplace Privacy, Generally

No broad rights to privacy

No comprehensive federal workplace privacy legislation exists

Employees may be fired at will (provided it is not for illegal reasons)

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Public Sector Employee PrivacyPublic Sector Employee Privacy Public sector: That segment of the workforce

represented by governmental employers and governmental agency employers

The Fourth Amendment

Protection against unreasonable search and seizure

Violation if the search is

Unreasonable

Unjustified at its inception

Impermissible in scope

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Public Sector Employee PrivacyPublic Sector Employee Privacy Search warrant

Drug testing

Search of employer-owned property

False imprisonment

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Public Sector Employee PrivacyPublic Sector Employee Privacy The 5th and 14th amendments

Strict scrutiny

Compelling state interest

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 1974The 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

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The Privacy Act of 1974The Privacy Act of 1974 The right to privacy is not absolute

Eleven exceptions to the act

Guiding factors

Employee relief

Criminal penalties

Civil remedies

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Privacy Protection Study CommissionPrivacy Protection Study Commission

Privacy Act not extended to private sector

Commission recommendations

Not yet implemented by Congress – vocal rejection from private employers

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Federal Wiretapping―Title IIIFederal Wiretapping―Title III Federal Wiretapping – Title III

Governs the interception of oral, wire, and electronic communications

Interception by state and local law enforcement

ECPA

Covers all forms of digital communication

Prohibits unauthorized eavesdropping

Prohibits unauthorized access to messages

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Private Sector Employee PrivacyPrivate Sector Employee Privacy State action – actions by state or federal

government

Private action – action by private employer

No constitutional protection triggered

Compliance-related costs for private employers

Private-sector employers do not carry out invasive activities

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Legal Framework for Employee Rights Legal Framework for Employee Rights in the Private Sectorin the Private Sector

At-will employment doctrine: 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 for discriminatory reasons

Employment at will limited by certain statute or case law

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Bases for Right to Privacy in the Bases for Right to Privacy in the Private SectorPrivate Sector

Statutory Claims – inadequate protection for private employees

Tort: A tort is a private wrong in which one person causes injury to another person

Allows the injured person to sue the wrongdoer and to collect damages

The injury can be physical, mental, or financial

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Bases for Right to Privacy in the Bases for Right to Privacy in the Private SectorPrivate Sector

Tort Law Protections/Common Law

Intrusion into Seclusion

Wrongful invasion – objectionable to a reasonable person

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

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Bases for Right to Privacy in the Bases for Right to Privacy in the Private SectorPrivate Sector

Other tort law protections

Publication in a false light

Public disclosure of facts that place the employee in a false light

Breach of contract

Defamation

Libel vs. slander

Compelled self-disclosure

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Regulation of Employee’s Off-Work Regulation of Employee’s Off-Work ActivitiesActivities

Private activities may be regulated if the off-work conduct affects the employee’s performance at the workplace

Smoking, weight, marital status, romantic involvement, political status, and lifestyle discrimination

Enforcement

U.S. companies with operations in Europe must comply with data protection laws

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Employer’s Information-Gathering Employer’s Information-Gathering Process/Justified Use/Disclosure of InformationProcess/Justified Use/Disclosure of Information

Process of information gathering

Harassment

Improper filing

Dissemination of the information

Function creep

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Employer’s Information-Gathering Employer’s Information-Gathering Process/Justified Use/Disclosure of InformationProcess/Justified Use/Disclosure of Information

Collection and retrieval of information

Limitation of questions to potential employee

Proper storage of information

References

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Electronic Monitoring or Surveillance of Electronic Monitoring or Surveillance of Employee ActivitiesEmployee Activities

Written policies concerning e-mail and Internet use

Bloggers beware

New technologies

Global positioning systems (GPS)

Radio frequency identification devices (RFID)

Biometrics

Informal intrusions

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Forms of MonitoringForms of Monitoring Surveillance by glitch

Information uncovered by mistake

Surveillance by default

All information sent through a system is caught and cataloged

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Forms of MonitoringForms of Monitoring Surveillance by design

Entire purpose is to collect information and the user is aware of this purpose

Surveillance by possession

Employee information contained in a database or some other list

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How Does Monitoring Work?How Does Monitoring Work? Silentrunner

Global positioning

Websense/Websense reporter

MIMEsweeper

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How Does Monitoring Work?How Does Monitoring Work? Reasons to monitor

Avoid legal liability

Prevent employee theft

Protection from overt intrusions

Prior consent

Business extension

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Percentage of Large U.S. Companies Percentage of Large U.S. Companies That Monitor Employee E-mailThat Monitor Employee E-mail

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Business Justifications for Monitoring Business Justifications for Monitoring Employees’ Technology UseEmployees’ Technology Use

Reasons to limit workplace Internet use

Wasted time

Overclogged networks

Inappropriate material seepage into the workplace

Concern about impression

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Business Justifications for Monitoring Business Justifications for Monitoring Employees’ Technology UseEmployees’ Technology Use

Areas of employer potential liability

Defamation

Copyright infringement

Sexual harassment

Discrimination

Obscenity

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The Case of Employee E-mailThe Case of Employee E-mail Employers’ needs vs. employees’ right to privacy

The employer’s interception must not exceed the scope of the employee’s consent

Employee must be informed

State imposed notice requirements

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Developing Computer Use PoliciesDeveloping Computer Use Policies

Policies – written, communicated to employees, and adhered to

Suggested guidelines

Appropriate areas

Employee access to information gathered

Ban on continuous monitoring and secret monitoring

Only job relevant information collected

Only for business interest

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Blogging and Other Social Media Blogging and Other Social Media (“Web 2.0”)(“Web 2.0”)

Social media: User-created content, including text, video, audio, and other multimedia

Published in a shared environment, such as a blog, wiki, or other similar site created to enable such sharing

Employers have wide latitude in off-duty blogging

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Blogging and Other Social Media Blogging and Other Social Media (“Web 2.0”)(“Web 2.0”)

Company’s social media policy

Defined objectives that do not overreach

A reminder that company policies apply

Personal comment rules

Disclosure, monitoring, and copyright reminders

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Waivers of Privacy RightsWaivers of Privacy Rights Waiver: The intentional relinquishment of a

known right

Waiver of privacy rights as a condition of employment

Requiring a waiver is a questionable approach

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Waivers of Privacy RightsWaivers of Privacy Rights Requirements of a waiver

Should be accompanied by an offer of employment

Must be knowingly and intelligently given

Must be clear and unmistakable, given in writing, and voluntary

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Privacy Rights Since September 11, Privacy Rights Since September 11, 20012001

USA PATRIOT Act

Allows government to monitor anyone on the Internet simply by contending that the information is “relevant” to an ongoing criminal investigation

Employer response to governmental request for information

Anti–USA PATRIOT Act resolutions