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 walks a fine line when it comes to respecting employee privacy: If it delves 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 suit based on ah offensive e-mail, or a negligent hiring suit because an employee with faked credentials hurt someone.

A long-term care facility should have a clearly written privacy policy detailing the rights that it reserves for itself under the law. When ah employer communicates that policy to employees and applies it consistently, and employees know exactly what to expect, the likelihood of legal problems declines.

Most employee claims of privacy violation arise in six areas:

* workplace searches

* surveillance

* drug testing

* employment background investigations

* employment physicals and tests

* conversations about employees outside the workplace

Workplace Searches

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 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.

Surveillance

The courts generally hold employers responsible for providing a workplace that is free of sexual harassment. To reduce their vulnerability to harassment 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 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, 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 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 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 of violating the Labor Management Relations Act.

Employment Background Investigations

Employers are caught on the horns of a 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, 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 (ADA), 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 money to pay off credit cards. Under the Fair Credit Reporting Act, 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 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 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 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 suit may arise. An employer may also be liable for publicizing private facts about an individual.

Conclusion

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 Department of the national taw firm Eckert Seamans Cherin & Mellott, Pittsburgh. For further information, phone [phone]. To comment on this article, please send e-mail to [e-mail].