Publication in a False Light
In a false light claim, the employee is compensated for the inability to be left alone. In a defamation claim, the damage is injury to reputation in the public’s perception.
The right to make any of these claims are effectively waived by the employee if the employee allows the information to be published. But the employee cannot be compelled to self-publish by the employer, such as when the employer provides a false basis for termination.
A claim for breach of contract may also be available for an invasion of privacy, assuming the employee can establish an express or implied employment contract exists.
The scope of the right to privacy extends to the way the employer gathers and processes the information. Improper retrieval of information may be an invasion when the improper filing or dissemination of the file may leave the employer liable to a defamation claim. The employer must also be careful to ensure that the information does not get into the wrong hands.
Employer Defenses
An employer can defend against these torts by establishing the truth of the information communicated. Employers are also immune from liability for statements made in good faith, and/or those made in a judicial proceeding. Good faith means the statements were not made with malice or ill will toward the employee.
Waiver of Privacy Rights
Courts differ on the question of whether or not the employee’s right to privacy can be waived. To be valid, any waiver must be voluntary. There must be some form of consideration, namely a job offer, given to the employee due to the superior bargaining the employer generally holds. The courts have required the waiver be knowingly given. They must also be clear, unambiguous, and in writing.
Ask Yourself
Review Questions
1. True or False: A fundamental right is a right guaranteed by the Constitution.
2. True or False: A reasonable search does not include the collection of bodily fluids, such as blood samples and urine.
3. The tort of compelled self-disclosure occurs when:
a. an employer requires former employees to provide their own references.
b. an employee is required to submit to testing that yields damaging results.
c. an employee is required to submit to a lawful search that nevertheless yields damaging results.
d. an applicant is prejudiced in finding new employment because of being required to reveal false and defamatory reasons for termination from a former job.
4. What tests are employed by the courts to determine whether state action is constitutional?
5. Under what conditions will a private- or public-sector employer be exempt from the general prohibition against the monitoring of employee telephone calls?
Labor law is an entire body of law unto itself, very different from the larger body of employment law. Although the term employment law refers to a wide range of issues related to the workplace, labor law focuses specifically on issues related to labor unions and collective bargaining agreements. Rather than each employee striking individual deals with the employer, the law permits employees to do so in an organized way, provided the workers have similar work interests and agree to allow a representative speak for them. This is called collective bargaining.
The theory behind collective bargaining is that it is in the employer’s and the employees’ best interest if the employer only has to deal with representatives of the workforce, as opposed to negotiating with each member separately.
Collective bargaining was not something employers initially welcomed. It was a right won by workers only after nearly 100 years of struggle on many fronts in the streets, in Congress, various state legislatures, and in the courts.
The Sherman Anti-Trust statute was frequently used by courts and the opponents of collective bargaining to find organizing efforts by workers to be illegal. That finally changed with the passage of the first of four important labor laws.
The Norris-LaGuardia Act was the first major labor law. Enacted in 1932, it restricted the ability of courts to issue injunctions against unions engaged in concerted activity. Historically, employers used antitrust law against employees who hoped that by banding together, they would improve their bargaining position with the employer. The act also outlawed “yellow dog contracts,” an employer practice in which applicants had to agree that they were not a union member as a condition of employment.
The Wagner Act or the National Labor Relations Act (NLRA), passed in 1935, established the right of employees to form unions, bargain collectively, and strike. It also defined unfair labor practices. The National Labor Relations Board (NLRB) is another result of that legislature. The NLRB (an independent agency) conducts elections among employees to determine what union—if any—is to represent specific workers, adjudicates unfair labor practice claims, and generally administers the NLRA.
In collective bargaining, employees with a community of interests (meaning similar workplace concerns and conditions) form a single bargaining unit. The community of interests is based on factors such as similarity of the jobs employees perform, work conditions, skills, and training.
Unions are created when a sufficient number of employees sign authorization cards, a majority votes for a union in a union representation election, or the NLRB orders the employer to bargain with a union. The last method is used only when the actions of the employer are so outrageous that the NLRB determines no other method can yield a fair indication of employee sentiment. The NLRB supervises the elections and certifies the results in such a case. Unions are composed of nonsupervisory or managerial employees and may include part-time workers.
Under the NLRA, an employer is required to bargain collectively in good faith about wages, hours, and terms and conditions of employment. These are considered mandatory bargaining subjects. Employers may bargain about other matters (permissive subjects), but only a refusal to bargain over mandatory subjects is considered an unfair labor practice.
The intent of the collective is to prevent management from unilaterally instituting workplace policies that affect workers. The law requires that the parties bargain in good faith, not that they reach an agreement. Examples of bad faith bargaining are if one party refuses to offer any evidence to explain or support a position, one side rejects a proposal and makes no counter proposal or fails to show up for negotiations.
