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Topic 4.4: The Right to Privacy and Other Protections from Employer Intrusions

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Most people recognize that the remarkable technological developments of the 1990s were generally very beneficial to society. Many people are beginning to realize they have their downsides as well. Primarily, new technologies allow others to obtain personal information about people at levels and ways unheard before the advent of the computer and other high-technology devices. For example, employers can now determine who employees talk to on the phone, for how long, and even what was said. Employers are now using information derived from the applicant’s saliva, hair, or urine to predict who may have future health problems or who may have children with future health problems. All this is done in the name of saving the business money. One area of increasing concern—but as of yet not uniformly regulated—is the use and monitoring of e-mail.

Employer Need for Information

Certainly there are some good reasons for employers to collect information about their employees. In our increasingly competitive economy and its emphasis on service and information, the individual employee can be the employer’s greatest investment. Clearly, employers have an incentive and interest—but not always the right—to gather whatever information they can on their employees. At some point, the employer’s right know must be offset by the employee’s right to privacy.

Foundations of the Privacy Right

The Constitution is silent on the right to privacy, but the right of privacy has been acknowledged as necessary for the fulfillment of other constitutional rights we hold. These fundamental rights include the right of free speech, to marital privacy, and to be free from unreasonable searches and seizures, which is constitutionally guaranteed.

Employees in the public sector have additional protection because the Constitution protects individuals from wrongful intrusions by the state or anyone acting on behalf of the state.

Constitutional Protection

The Fourth Amendment protects against unreasonable searches and seizures. A search has been interpreted to include any collection of blood, hair, or urine samples, or other bodily invasions, as well as personal information acquired from oneself or others. For a search to be considered unreasonable, it must be unjustified at its inception and impermissible in scope.

One court held that a search was justified at its inception when the employer has reasonable grounds for suspecting the search will turn up evidence that the employee is guilty of work-related misconduct or that the search is necessary for a noninvestigatory work-related purpose such as retrieving a file.

A search is permissible in scope when:

· the measures adopted are reasonable related to the objectives of the search

· not excessively intrusive in light of the nature of the misconduct being investigated

The unreasonableness of a search must be balanced with the extent of the invasion and the extent the employee should expect to have privacy in this particular area against the employer’s interest in the security of its workplace, the productivity of workers, and other job-related concerns. For example, when the employer searches employer-owned property—such as desks, lockers, and file cabinets—the employees should be given notice, but no consent is required. When the employer searches personal affects—such as purses, briefcases, and wallets—the employer should inform the employee of the process and obtain the consent first. The employer is guilty of false imprisonment if the employee is not allowed to leave the premises during the search.

The Fifth and Fourteenth Amendments also protect a government employee’s right to privacy by prohibition on the states’ right to restrict individual fundamental rights, such as the right to travel.

When the state attempts to infringe on fundamental rights, that restriction is subject to strict scrutiny (the most difficult standard to meet) by the courts. To be justified, the state must a show a compelling state interest and that the infringement is the least intrusive alternative available. For those interests not considered fundamental, the state restriction must be rationally related to a valid state interest.

The Privacy Act of 1974 applies only to federal government employees. It regulates the release of personal information about federal employees by federal agencies. The act prohibits the release of any employee information that allows the employee to be identified, unless the employee consents. When an exception applies, the employee consent does not apply.

There are four basic principles addressed by the Privacy Act:

· employees should be able to correct an inaccurate record

· employees should be able to prevent information from being inappropriately revealed, unless required by law

· the person in charge of maintaining the information must ensure its security and proper use

· employees should have access to their own files

The right to privacy is not absolute, however. It is subject to a balancing test of the employee’s right to privacy and the requestor’s need to know.

Two options for relief are available—criminal penalties and civil remedies, such as damages, and injunctive relief.

The Federal Wiretapping Statute protects public- and private-sector employees from employer monitoring of their phone calls and other communications without a court order. There are two exceptions to the statute:

· interception is authorized when one of the parties to the communication has given prior consent

· when the equipment used is also used in the ordinary course of business (known as the business extension provision)

The privacy of private-sector employees is significantly less protected than that of public employees. Employers suggest that employees take one of three options when faced with objectionable intrusions—quit, comply, or object and risk termination.

Actually, states protect employee privacy in one of four ways:

· legislation mirroring federal laws

· state constitutions that recognize a right to privacy

· protection in certain areas, such as personnel records and the use of credit information

· personal injury torts and other legal theories

Tort Theories

Three tort theories involving invasion of privacy are public disclosure of private facts and defamation, intrusion into seclusion, and publication in a false light. The last two theories are discussed here.

Intrusion into Seclusion

To be actionable, the employee’s sphere of privacy must be invaded to the point that it would be objectionable to a reasonable person. The employer can respond with justifiable business purposes for the intrusion.

Employers may regulate employees’ off-work activities when they believe it affects the employee’s work performance. But the courts will look very closely at such cases to ensure the regulation is sufficiently related to a legitimate business interest.

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?

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Topic 4.5: Labor Law

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.

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