Understanding employee privacy
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The document discusses privacy in the workplace, highlighting the legal frameworks that govern employer monitoring practices and employees' rights to privacy. It outlines key laws related to electronic communications, medical information confidentiality, and identity theft prevention, emphasizing the importance of having clear policies and training programs. The balance between employer rights to monitor employee activities and the responsibilities to protect personal information is emphasized as essential for effective workplace management.
Understanding employee privacy
- 1. Understanding Privacy in the Workplace Presented by Brittany Cullison, PHR December 1, 2011
- 2. Important Notice • I am not an attorney. • This is not a substitute for experienced legal counsel. • This is not legal advice.
- 3. What to expect • Laws that govern privacy in the workplace • What employers can monitor-- and the right way to do it • Employer’s obligations to protect employee’s private information—and best practice guidelines
- 4. What governs privacy in the workplace? • Fourth Amendment – Not applicable for private employees, but offers protection in some cases for public employees • Electronic Communications Privacy Act – Governs the monitoring and recording of employee electronic communications
- 5. What governs privacy in the workplace? • FCRA and FACTA – Promotes confidentiality, accuracy, relevancy, and proper use of that information • EPPA – Prevents use of lie detectors in employment practices
- 6. What governs privacy in the workplace? • ADA and FMLA – Recordkeeping and confidentiality of employee medical information • HIPAA – Privacy of personally identifiable health information • GINA – Restricts employers from acquiring and disclosing employee genetic information
- 7. What governs privacy in the workplace? • Identity theft laws – Federal and state level • Common Law • Contractual Privacy Claims
- 8. Employer Rights • Electronic Monitoring – Computers – Emails – Internet Usage- Social Media – Telephone • Video Surveillance • Workplace Searches
- 9. Electronic Monitoring: Computers • Company issued computers – Employers can monitor – Should have clear policy that dissolves any expectation of privacy • “Personal” files, password protected documents • Personal Computer used for Work – May be subject to discovery in litigation, but typically only if subpoenaed
- 10. Electronic Monitoring: Emails • Company email – Property of the company – Employer can access • Personal email accessed on company computer – Employer cannot access without employee giving consent – Stored Communication Act
- 11. Electronic Monitoring: Emails • Stored Communications Act – Established in 1986 – Title II of the ECPA – Prohibits unauthorized access to electronic communications stored on a third party site
- 12. Electronic Monitoring: Emails • Company email – Property of the company – Employer can access • Personal email accessed on company computer – Employer cannot access without employee giving consent – Stored Communication Act
- 13. Electronic Monitoring: Internet • Internet usage on company device – Employers can monitor – Should have a written policy • Social Networking – Public vs. private – Use caution when disciplining an employee for disparaging comments found – Section 7 of NLRA- applies to union and non- union
- 14. Electronic Monitoring: Internet • Social Networking – If someone has access, they can share access – Should have a written Social Media policy
- 15. Electronic Monitoring: Telephones • Business telephones – May be monitored when: • employee has given consent or • “Business Extension” exemption – Personal calls on business phones cannot be monitored • Company issued cell phones – Should have a policy that dissolves expectation of privacy – Searches, reviews, and monitoring should be done only for legitimate, business purposes
- 16. Video Surveillance • Acceptable in open and public work areas • If recording audio, must comply with ECPA • Limit access to the recorded material to designated management
- 17. Workplace Searches • Reasonable expectation of privacy – Company property vs. Employee Property – Written policy • Justified Search – Reasonable suspicion – Violation of another company policy • Drug and Alcohol Policy • Weapons in the Workplace • Confidentiality
- 18. Workplace Searches • Reasonableness – Discretion – Other investigatory methods exhausted – Appropriate scope • Never force an employee to submit to search • Have another witness present during a search
- 19. Employer Responsibilities • Identify Theft Prevention – Policy, Procedure and Training • Confidentiality of Medical Information • Additional confidentiality and recordkeeping practices • Clearly communicate workplace monitoring policies • Train employees and managers
- 20. ID Theft Prevention • Evaluate information security and disposal – How easy is it for someone to access your office during business hours? – How long documents stay at the printer before some one retrieves them? – Are documents that contain personal information left out unattended? – Are computer screens being locked every time someone leaves there desk?
- 21. ID Theft Prevention • Are cabinets and drawers being locked? • Are emails that contain personal information being sent securely? • Are documents properly shredded when no longer needed? • Who in the office has access to sensitive information?
- 22. ID Theft Prevention • Develop a protection plan – Conduct a “walk through” – Identify potential risks – Create easy to follow guidelines and procedures • Educate your employees – The importance of protecting personal information. – Measure that the company will take to began this process. – How the will be enforced.
- 23. ID Theft Prevention • Have a Breach Plan – Notify employee, law enforcement and possibly FTC – Notify credit bureaus – Conduct internal investigation – Take steps to minimize or prevent additional loss
- 24. Confidentiality of Medical Information • Do not request medical exam or make inquiry unless employee poses direct threat or it’s job related and consistent with business necessity • Medical information should be kept confidential and in separate file – FMLA certifications – Worker’s Comp reports – Medical exam results – HIPAA regulated documents, if applicable
- 25. Confidentiality of Medical Information • Train supervisors on how to respond • Educate employees on what is appropriate to disclose in the workplace
- 26. Additional Confidential Recordkeeping • Consumer Reports – Reports must be disposed of properly under FACTA • Investigations – Confidential to protect witnesses and accuser
- 27. Policies • Electronic Monitoring – Define system covered – Business-use only – Discuss prohibited use – Explain consequences – Inform of employers’ right to monitor • Telephone Monitoring – Define purpose of monitoring – Discuss calls that appear to be personal
- 28. Policies • Social Media – Define what social media is – Apply it to business and personal – Compare to other policies • Workplace Searches – Define purpose and search areas – Ensure that a search is not an accusation – Refusal may lead to disciplinary action or termination
- 29. Summary • Privacy in the workplace is a combination of employer rights and employer responsibilities • The key to monitoring employees is to dissolve the expectation of privacy • Employee information protection is in the hands of HR