31511230/0403 © 2004 Business & Legal Reports, Inc.
BLR’s Training Presentations
Privacy Issuesin the Workplace
31511230/0403 © 2004 Business & Legal Reports, Inc.
Goals
Recognize key workplace privacy issuesUnderstand company policies related to
workplace privacyKnow how to balance the company’s need
to control the workplace with employees’ right to privacy
31511230/0403 © 2004 Business & Legal Reports, Inc.
Workplace Privacy: General Considerations
Privacy in the workplace and the law
Expectation of privacy
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Workplace Privacy: General Considerations (cont.)
Lowering the expectation Balancing employer
and employee interests Protecting customer
confidentiality
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Electronic Monitoring: Employer Rights
Protection of legitimate business interests
Federal and state law Exceptions to the law Cautions
31511230/0403 © 2004 Business & Legal Reports, Inc.
Electronic Monitoring: Policy
Company property Right to monitor Disclosure Implied consent
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Electronic Monitoring: Telephones
Conversations Personal matters Voice mail Notice of monitoring
31511230/0403 © 2004 Business & Legal Reports, Inc.
Electronic Monitoring: Internet and e-mail
Notice Inappropriate use Limiting access
31511230/0403 © 2004 Business & Legal Reports, Inc.
Electronic Monitoring: Video Surveillance
Location of cameras Security of viewing
equipment and tapes Notice of surveillance Expectation of privacy Accompanying audio
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Electronic Monitoring: Case Study
Employee complaint Co-worker viewing pornographic
websites at work Also sending sexually explicit e-mailsSupervisor consults HR Management decides to monitor
employee’s e-mail and Internet use
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Case Study: Comment
If system is maintained by the company…
If system is maintained by an outside provider…
Obtaining consent
31511230/0403 © 2004 Business & Legal Reports, Inc.
Security: Searches
Physical searches Personal property Searching desks,
lockers, etc. Mail Evidence of
criminal activity
31511230/0403 © 2004 Business & Legal Reports, Inc.
Security: Lie Detector Tests
Written advance notice Statement summarizing incident being
investigated Notice of right to refuse to take the test Review of questions to be asked Notice that test may be terminated by
employee Copy of test results
31511230/0403 © 2004 Business & Legal Reports, Inc.
Background Checks
Reference checks Reports by outside
investigators
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Background Checks (cont.)
Education and licenses Driver’s records Confidentiality
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Responding to Requests for References
Company policy Written authorization Objective job-
performance issues
31511230/0403 © 2004 Business & Legal Reports, Inc.
Drug and Alcohol Testing
When to test Samples Results
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Drugs and Alcohol: Case Study
Report of illegal drug use on company premises
Supervisor conducts a search No drugs found Supervisor orders drug test
31511230/0403 © 2004 Business & Legal Reports, Inc.
Case Study: Comment
Drug test not supported by reasonable suspicion
Basis for reasonable suspicion
31511230/0403 © 2004 Business & Legal Reports, Inc.
Confidential Employee Medical Information
Security Need to know Employee rights HIPAA Privacy Rule
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Protecting Customer Confidentiality
Limited access Adequate security
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Workplace Privacy Checklist
Explain the company’s electronic monitoring policy
Make sure employees understand that e-mail and voice mail may be monitored
Advise employees that telephones are for company business only
Warn employees about Internet use
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Workplace Privacy Checklist (cont.)
Advise employees that work areas may be searched
Be careful when conducting searches Make sure employees understand the
substance abuse policy Administer drug and alcohol testing in
compliance with the law
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Workplace Privacy Checklist (cont.)
Protect confidential medical informationUse caution with background checks Obtain written authorization before giving
referencesProtect customer confidentiality
31511230/0403 © 2004 Business & Legal Reports, Inc.
Goals
Recognize key workplace privacy issuesUnderstand company policies related to
workplace privacy Know how to balance the company’s need
to control the workplace with employees’ right to privacy
31511230/0403 © 2004 Business & Legal Reports, Inc.
Summary
The company has a legitimate right to control the workplace in an effort to prevent theft of valuable property, protect safety, ensure business resources are being used solely for business purposes, etc.
To achieve these important goals, we may need to monitor employee activities, require employees to submit to drug testing, or even make workplace searches
31511230/0403 © 2004 Business & Legal Reports, Inc.
Summary (cont.)
But these actions must be balanced by a concern for the privacy of employees and compliance with the laws governing workplace privacy
By balancing these interests, we not only build a more respectful and productive working relationship with employees, but we also avoid costly and needless litigation of employee privacy claims
31511230/0403 © 2004 Business & Legal Reports, Inc.
Quiz
1. The basic question concerning workplaceprivacy is: How do you balance the employer’s right to ________________ with the employee’s right to ____________?
2. The explosion of workplace technology has brought privacy issues into sharper focusin recent years. True or False
3. Give an example of an employee’s reasonable expectation of privacy in the workplace.
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Quiz (cont.)
4. How can employers lower the expectation of privacy to accommodate their need to control the workplace and prevent theft, violence, etc.?
5. Federal and state laws allow employers to monitor company telephones at any time for any reason.
True or False
6. Employers may monitor telephone calls and Internet use, but privacy laws say they cannot read employees’ e-mail or listen to their voice mail.
True or False
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Quiz (cont.)
7. Identify two key privacy issues concerning video surveillance of employees.
8. Employers may search an employee’s desk, locker, or files only with the employee’s express consent.
True or False
9. When responding to requests for references for employees or former employees, what three things should you do?
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Quiz (cont.)
10. If you were searching an employee or an employee’s personal property (such as a purse or briefcase), you should ask the employee to empty his or her pockets or personal property rather than doing so yourself. True or False
31511230/0403 © 2004 Business & Legal Reports, Inc.
Quiz Answers
1. The basic question concerning workplace privacy is: How do you balance the employer’s right to control the workplace with the employee’s right to privacy.
2. True. Electronic monitoring, for example, raises many difficult privacy issues.
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Quiz Answers (cont.)
3. Employees would have a reasonable expectation of privacy in a locker room or bathroom, for example. Video surveillance in such places would be an invasion of privacy.
4. Employers can use policies and written notices to lower expectations of privacy. This warns employees about the degree of privacy they can expect.
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Quiz Answers (cont.)
5. False. The laws generally only allow monitoring in the ordinary course of business for a legitimate business purpose, such as ensuring quality of customer service or preventing the disclosure of trade secrets.
6. False. If the company owns and operates the voice mail and e-mail systems and warns employees that messages may be monitored, it can legally read and listen to these messages.
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Quiz Answers (cont.)
7. Privacy issues include the location of cameras in appropriate areas of the facility, the security of video viewing equipment and tapes to prevent unauthorized viewing, and notice of surveillance.
8. False. Employers have the right to search company property and company premises for reasonable cause.
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Quiz Answers (cont.)
9. When giving references, follow company policy, get written authorization from the employee, and limit your comments to objective job-performance issues.
10. True. Never touch an employee during a searchor empty the contents of an employee’s briefcase, purse, backpack, vehicle, etc., yourself.