Employee privacy versus employer rights: it's easy to invade employees' privacy, and suffer the legal consequences, if you're not careful. Here's how to be careful.Courts have affirmed that employees have a limited right to be protected from unreasonable intrusion into their private affairs. At the same time, the legal requirement that employers maintain a safe, harassment- and drug-free workplace provides a strong incentive to perform some level of employee monitoring. That's why a long-term care facility long-term care facility
See skilled nursing facility. walks a fine line when it comes to respecting employee privacy: If it delves Delves is a village in County Durham, in England. It is situated a short distance to the south of Consett. too far into ah employee's private affairs, it may face an invasion-of-privacy claim. If it is lax, the facility may be hit with a harassment Ask a Lawyer
Country: United States of America
I recently moved to nev.from abut have been going back to ca. every 2 to 3 weeks for med. suit based on ah offensive e-mail, or a negligent hiring Negligent hiring is a cause of action in tort law that arises where one party is held liable for negligence because they placed another party in a position of authority or responsibility, and an injury resulted because of this placement. suit because an employee with faked credentials hurt someone.
Most employee claims of privacy violation arise in six areas:
* workplace searches
* drug testing
* employment background investigations
* employment physicals and tests
* conversations about employees outside the workplace
Employees tend to view their desks, lockers, toolboxes, and workbenches as private spaces. These spaces, however, are generally the property of the employer, who may need to search them if there is a reasonable concern, for example, about a drug problem or theft of company property. To reduce the likelihood of an invasion-of-privacy claim resulting from a workplace search, a long-term care facility should establish and post a broad search policy stating that:
* All furniture and equipment made available to employees in the course of their employment are and remain the property of the facility.
* The facility is not responsible for the loss of or damage to employees' personal property brought into the workplace.
* The facility reserves the right to inspect and search its furniture and equipment, as well as any other object of, if warranted, person in the workplace.
* Employees have no expectation of privacy in relation to the furnishings, equipment, and other objects used in of brought into the workplace.
The policy must also make clear the consequences of refusing to comply with its provisions.
A long-term care facility should conduct a search under such a policy only when necessary, with the written authorization of senior management, and with as much sensitivity to employees' privacy concerns as is reasonable under the circumstances. Employees are less likely to claim a privacy invasion when management has a written policy and a justifiable jus·ti·fi·a·ble
Having sufficient grounds for justification; possible to justify: justifiable resentment.
jus reason for a search. Employees generally understand the need for such action, particularly if the employer conducts the search in a manner that respects employee dignity.
The courts generally hold employers responsible for providing a workplace that is free of sexual harassment sexual harassment, in law, verbal or physical behavior of a sexual nature, aimed at a particular person or group of people, especially in the workplace or in academic or other institutional settings, that is actionable, as in tort or under equal-opportunity statutes. . To reduce their vulnerability to harassment litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.
When a person begins a civil lawsuit, the person enters into a process called litigation. and to promote a productive, professional work environment, employers are increasingly monitoring their employees' use of telephones and e-mail and videotaping their activities on the job.
Wiretapping A form of eavesdropping involving physical connection to the communications channels to breach the confidentiality of communications. For example, many poorly-secured buildings have unprotected telephone wiring closets where intruders may connect unauthorized wires to listen in on phone laws vary from state to state; an employer should review them before conducting any electronic surveillance. Pennsylvania, for example, prohibits the recording of conversations and listening in on employee telephone calls as an invasion of privacy invasion of privacy n. the intrusion into the personal life of another, without just cause, which can give the person whose privacy has been invaded a right to bring a lawsuit for damages against the person or entity that intruded. , but allows employers to listen to employee calls to carry out a legitimate business function, e.g., for supervisory purposes.
While employers generally can videotape their worksites and monitor employee e-mail, they must be aware of the legal risks of doing so. For example, using a videotape recorder could constitute illegal wiretapping if the recorder's microphone is on. Similarly, e-mail monitoring imposes confidentiality obligations.
Drugs and Employee Privacy
Long-term care facilities have a legitimate interest in ensuring that employees are drug-free. Here are some guidelines to follow when creating a drug-testing policy:
* A facility is entitled to ask job applicants about current drug use and can require an applicant to take a drug test before it makes a job offer.
* A facility may require an employee to take a drug test if it has a reasonable suspicion Reasonable suspicion is a legal standard in United States law that a person has been, is, or is about to be, engaged in criminal activity based on specific and articulable facts and inferences. that the employee reported to work under the influence of drugs or alcohol. It may also test an employee who is involved in an on-the-job accident.
* Random drug tests are the drug tests that employees are most likely to challenge, e.g., an employee who is discharged for failing, or refusing to take, a random drug test might challenge the discharge in court. Courts permit random drug tests as long as they are administered under a reasonable policy that does not unduly intrude on Verb 1. intrude on - to intrude upon, infringe, encroach on, violate; "This new colleague invades my territory"; "The neighbors intrude on your privacy"
encroach upon, obtrude upon, invade employee privacy rights.
* Test results must be held in strict confidence.
Drug-testing laws vary from state to state, and a long-term care facility should seek legal counsel in drafting its drug testing policy to ensure compliance with local law. If the workforce is unionized, there is an even greater need for legal advice before implementing a drug-testing policy, to avoid breaching the collective bargaining agreement The contractual agreement between an employer and a Labor Union that governs wages, hours, and working conditions for employees and which can be enforced against both the employer and the union for failure to comply with its terms. of violating the Labor Management Relations Act.
Employment Background Investigations
Employers are caught on the horns of a dilemma alternatives, each of which is equally difficult of encountering.
See also: Dilemma when it comes to background investigations. Delving into areas of an applicant's or employee's private life that are irrelevant to the job may expose an employer/provider to a violation-of-privacy claim by a rejected applicant. At the same time, failure to conduct a thorough check could expose an employer to liability if an employee who has faked his or her credentials causes injury to others.
Employers are generally sale if they get the applicant's written consent to the background check and investigate only information relevant to the job. The key to legally valid investigations is to know what not to ask and to safeguard the information obtained during the investigation. Here are some guidelines:
* Criminal record. A criminal background check is probably in order for a position that involves substantial patient contact, among others. A long-term care facility may ask ah applicant about his or her criminal record and may deny employment to a convicted felon An individual who commits a crime of a serious nature, such as Burglary or murder. A person who commits a felony.
felon n. a person who has been convicted of a felony, which is a crime punishable by death or a term in state or federal prison. , if the conviction is related to the job duties. The facility may not, however, reject an applicant because of an arrest record or a prior conviction that was pardoned.
* Medical history. An employer cannot ask about physical injuries of previous worker's compensation claims. It can ask if the applicant is able to perform the essential functions of the job.
* Drug use. Asking ah applicant about prior drug use may violate the Americans with Disabilities Act Americans with Disabilities Act, U.S. civil-rights law, enacted 1990, that forbids discrimination of various sorts against persons with physical or mental handicaps. (ADA Ada, city, United States
Ada (ā`ə), city (1990 pop. 15,820), seat of Pontotoc co., S central Okla.; inc. 1904. It is a large cattle market and the center of a rich oil and ranch area. ), for example, if the applicant sought treatment for a drug problem in the past. Employers may inquire only about current drug use.
* Credit. A credit report may be appropriate for a position that involves handling money; it would, for example, identify ah applicant deep in debt who might be tempted to siphon siphon (sī`fən, –fŏn), tube through which a liquid is lifted over an elevation by the pressure of the atmosphere and is then emptied at a lower level. money to pay off credit cards. Under the Fair Credit Reporting Act The Fair Credit Reporting Act (FCRA) is legislation embodied in title VI of the Consumer Credit Protection Act (15 U.S.C.A. § 1681 et seq. ), which was enacted by Congress in 1970 to ensure that reporting activities relating to various consumer transactions are conducted in a , an employer must gel an applicant's written consent before requesting the applicant's credit report. If an employer decides not to hire or promote someone based on information in the credit report, it must give the persona copy of the report.
Physicals and Tests
Employers routinely use tests to screen applicants' skills and aptitudes. There are, however, no hard-and-fast rules about whether a particular test is legal. Federal and state laws are often ambiguous and contradictory. Courts generally consider lawsuits challenging tests as ah invasion of privacy case by case. The decision usually hinges on whether a specific test predicts an applicant's ability to do a specific job.
For most positions, a psychological test that asks questions about an individual's sex life or personal beliefs probably crosses the line into intrusion, and may expose the employer to potential discrimination lawsuits if it rejects ah applicant for a position of a promotion and it can be inferred that the test was a factor.
In this area, federal employment law deals explicitly with two specific situations:
* Under the ADA, an employer may require ah applicant to take a physical of psychological examination only after it has made a job offer, and only to ensure that the applicant can perform the essential functions of the job.
* An employer may require a fitness-for-duty physical of an employee when there is objective evidence that he or she is physically or mentally unfit unfit
not properly prepared, e.g. physically incapable of performing hard work as in racing, because of lack of training. Said also of food prepared unhygienically.
unfit for human consumption to do the essential functions of the job, or of if he or she has completed a leave under the Family Medical Leave Act and is ready to return to work.
A long-term care facility should consult with legal counsel before establishing any employment testing Employment testing is the practice of administering written, oral or other examinations as a means of determining the suitability or desirability of a job applicant. Background requirements.
Employee Privacy Outside the Workplace
The law generally shields employers and coworkers from liability for making statements about ah employee's job performance to a person who has a legitimate right to know. For example, an employee who tells a superior that a coworker co·work·er or co-work·er
One who works with another; a fellow worker. may be stealing will be shielded, even if the accusation turns out to be untrue. If that employee makes the same accusation to other employees or to anyone outside the company, however, a defamation defamation
In law, issuance of false statements about a person that injure his reputation or that deter others from associating with him. Libel and slander are the legal subcategories of defamation. Libel is defamation in print, pictures, or any other visual symbols. suit may arise. An employer may also be liable for publicizing pub·li·cize
tr.v. pub·li·cized, pub·li·ciz·ing, pub·li·ciz·es
To give publicity to.
Noun 1. publicizing - the business of drawing public attention to goods and services
advertising private facts about an individual.
In sum, an ounce of prevention is worth a pound of legal defense. Employees who have clear expectations about privacy in the workplace are less likely to challenge their employers' actions. Focusing on these six areas of potential involvement would be prudent.
Thomas A. Shumaker is ah attorney in the Employment and Labor Law labor law, legislation dealing with human beings in their capacity as workers or wage earners. The Industrial Revolution, by introducing the machine and factory production, greatly expanded the class of workers dependent on wages as their source of income. Department of the national taw firm Eckert Seamans Cherin & Mellott, Pittsburgh. For further information, phone (412) 566-6000. To comment on this article, please send e-mail to firstname.lastname@example.org.