Overview of Employee Privacy Issues In The Private Sector

There is currently no national law establishing an employee right to privacy. Public employees have a right to privacy based on the Fourth Amendment to the US Constitution; however, private employees’ rights to privacy generally relies on state law. This article provides a general overview.

Background Checks

Employers are entitled to conduct background checks on employees before offering them a job and or after they have been hired. Most employers who do background checks do so to determine that the employee has not been involved in any immorality, physical violence, theft, financial misconduct or whether the potential or current employee has been charged with a crime that may interfere with their ability to do the job. Employers should get the employee or prospective employee’s written permission before conducting a background check. This requirement varies by state. Some states only require a general signed release, while others, like California, require disclosures and strict written consent. If the background check is conducted by a company other than the employer, the company completing the background check must comply with the Fair Credit Reporting Act (FCRA). FCRA requirements include completion of an FCRA consent form containing specific information; notifying the prospective employee if an adverse employment action results from information in the report (e.g. you did not get the job because of a felony conviction, etc.); and, telling the prospective employee which reporting agency provided the information so the prospective employee could challenge the findings. If you are denied a position based on a background check you should request the source and information turned up in the investigation. See additional information on background checks at: http://bassingerlaw.com/criminal-background-checks-and-eeoc-enforcement/

Drug Testing

Many employers require pre-employment drug testing to insure that they are not employing people whose drug issues will affect their work through workplace injuries, absences and possible criminal activity. Pre-employment drug testing has been litigated numerous times and courts have routinely held that the practice is legal. Employers also use drug tests during employment either as random testing, testing when they suspect an employee is under the influence, or when there has been an accident in the workplace. An employer may have a drug testing policy that outlines procedures and triggers for drug testing, so a prospective employee should find out and review it carefully if they think it may be an issue. Drug and alcohol testing procedures are generally controlled by state law and or by union contracts. Both should reviewed. Most states have laws that define who can be tested and for what circumstances; how the testing will be conducted; and, what standards will be used to determine if the test is positive. Very few employers do testing themselves and the majority contract out those services. Drug test results are confidential medical information that must be maintained in a separate employee file, separate from their personnel file. Employers are required to keep the information confidential and may not share the information with anyone including prospective employers calling for references. Without the employee’s written consent or an order from a court, the information cannot be disclosed.

Lie Detector Tests

In 1988 the U.S. Congress passed the Employee Polygraph Protection Act which restricts private employers from administering polygraph tests. They cannot be used pre-employment or post employment.

Tests For Communicable Venereal Diseases

Some states like California specifically prohibit tests for HIV or AIDS. Even states where such tests are permitted, employers are required to keep the information absolutely confidential. Any disclosure except in very limited circumstances may result in severe criminal penalties.

Pre-Employment Medical and Physical Examinations

Many employers require pre-employment medical and physical examinations. These types of examinations are limited to those areas of a potential employee’s health and physical condition that bear on the employee’s ability to do the job they are being considered for. Any information obtained from such tests or examinations must be maintained strictly confidential in a file separate from the employee’s personnel file.

Employee Medical Records

Employee medical records are governed by the Americans with Disabilities Act (ADA) and the Health Insurance Portability Act (HIPPA). There is no overarching federal law governing medical records. Employees do not have a separate right of enforcement on HIPPA violations by an employer, though they may have a common law right of recovery for breach of confidentiality. Employers may not disclose employee medical information that they have except to: safety and first aid providers when it is necessary to treat the employee; the employee’s supervisor when it is necessary to accommodate a disability; certain government officials; and, insurance carriers that require medical exams. Some states include additional restrictions on employer’s handling of medical records.

Summary

When an employee sues an employer for breach of privacy the courts generally consider three issues in reviewing the alleged violation: 1) did the employer have a legitimate business interest in the information obtained; 2) the extent to which the employer’s intrusion on the employee’s reasonable expectation of privacy; and, 3) was the employee’s expectation of privacy in that area reasonable. These cases are state specific because the law of the employee’s state applies. This article reviews privacy issues in a number of common workplace situations and activities. You should consult an attorney who practices in your state and locality when considering your privacy rights. She or he can provide you with clear answers on how you should proceed.

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Posted in Employee Privacy Issues.