Chapter 42
Employee Privacy in the Workplace
Technology allows employers to gather information about employees but it also provides more temptations for employees to be "off the job" at work Employers naturally want to monitor what employees are doing when they are supposed to beon the job Once employers monitor employees and discover wrongdoing, the issue of employers rights to fire at will becomes relevant Employees do not have a reasonable expectation of privacy when using their employers' email system, even during nonworking hours
Electronic Monitoring and Communication
Questions about employer monitoring of phone conversations, email, and voicemail invoke the common law tort of invasion of privacy and the federal Omnibus Crime Control and Safe Streets Act of 1968 as mended by the Electronic Communications Privacy Act (ECPA) of 1986 Under the first statue, employers cannot listen to or disclose the contents of private telephone conversations of employees They may ban personal calls and monitor for compliance as long as they discontinue listening to any conversation once they determine its personal Violators may be subject to fines up to $10,000 Under ECPA employees privacy rights were extended to electronic forms of communication including email and cellular phones o EPCA outlaws the international interception of electronic communications and international disclosure or use of the information so obtained The ECPA protects individuals' communications against government surveillance constructed without a court order from third parties without legitimate authorization to access the messages and from carriers such as Internet service providers o It provides employees little privacy protection with respect to communications conducted on the employer's equipment Employers are in the strongest position when they have a clear policy preventing any reasonable expectation of privacy At minimum employer privacy policies should cover the following issues: o Employer monitoring of telephone conversations Employer surveillance policies Employee access to medical and personnel records Drug testing policies Lie detector policies Ownership of computers and all issues unique to the electronic workplace Workplace dating policies
The SCA covers o Electronic communications that were transmitted via an electronic communication service that are in electronic storage and that are not public
Privacy and Social Media Policy Guidelines
The National Labor Relations Board (NLRB) has issues a number of rulings involving questions about employer social media policies NLRB have indicated that these cases are extremely fact-specific and have provided the following general guidance o Employer policies should not be so sweeping that they prohibit the kinds of activity protected by the federal labor law, such as the discussion of wages or working conditions among employees o An employee's comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees
Drug Testing in the Workplace
Under the Drug-Free Workplace Act, employers that receive federal financial assistance or have federal contracts worth over $25,000 must develop an antidrug policy for employees, providing frug-free awareness programs for them, and warn them of penalties for violating company drug policies Private employers engaged in