Every employee has a right to privacy in the workplace, and employers have the responsibility to uphold them. If a privacy violation occurs in the workplace, an employee may file a complaint or take legal action against the company. However, workplace privacy is not guaranteed as some circumstances may warrant intrusion of personal space, such as during investigations or litigation.
In case of privacy violation, the victim carries the burden of proof showing that the act is an intrusion of privacy in an offensive manner where they expected privacy. Whether you are an employer or employee, understanding the various privacy issues at the workplace will enable you to handle any violations and protect your interests. The following are the most common employee privacy issues you should know.
1. Physical Searches
Physical searches on an employee’s personal or private belongings are the most common privacy issues for employees. A physical inspection may be in the form of “pat-down” or even body scans using X-ray. While it may be highly intrusive, circumstances such as suspicion of theft with visual evidence of hiding the items on your person or bags warrant a physical search.
According to the law, an employer must have a valid reason to conduct a physical search. However, there are no clear rules on what your employer can and cannot do during a physical inspection. Employers may conduct random searches as part of the company’s policy, minimizing employees’ expectations for privacy. Note that the Fourth Amendment limits a public employer’s right to perform physical searches by prohibiting unreasonable seizure and search.
2. Video Surveillance
Videotaping employees can violate employee privacy rights even if it is in the business’s best interests. Camera surveillance that exposes employees’ bodily information or condition can pose serious privacy issues. The best way for employees to implement video surveillance is to do it in open or public areas where there is little expectation of privacy. You can videotape your employees on shop floors, for example, and avoid places like restrooms and changing rooms. It is always advisable to notify employees that they are under surveillance to prevent problems.
3. Background and Credit Checks
If the company’s policy requires employers to conduct background checks on employees, the employer must keep the information confidential. According to the Fair Credit and Reporting Act, employers should ask for employees’ permission before conducting credit checks on them. Remember that every state has different laws concerning background checks regarding finance, criminal history, and bankruptcy. Therefore, you should check the rules specific to your state to ensure you don’t run into legal problems. Doing so also helps you understand what information you may access, how you can use it, and the process of obtaining employee consent for the exercise.
4. Intercepting Employee Internet and Email Activities
Numerous laws, including the Electronic Communications Privacy Act of 1986 (ECPA), protect employees against unauthorized or intentional tapping of oral, wire, or electronic communication. Other laws prohibit access to the same information while in storage. Since most employers may find it necessary to monitor employee’s devices, especially when using personal devices for work, they can easily violate this law.
However, employers can take advantage of the available exceptions, such as provider exceptions, prior-notice exceptions, and business use, to avoid legal problems. Using technological tools like mobile device management tools to monitor employee devices can also help create boundaries between personal information and work.
5. Social Media Use
While social media platforms have numerous benefits, such as helping a company achieve a wider reach, an employee’s personal use of social media may cause privacy issues. Activities such as monitoring an employees’ profile can expose them to discrimination based on age, sex, or marital status. Using social media to perform background checks on employees and monitoring their online activities without their consent may infringe employee rights to privacy.
6. Alcohol and Drug Testing
To maintain a drug-free workplace, most employers conduct drug testing from time to time. However, federal and state laws may regulate or limit the employer’s ability to carry out alcohol and drug testing on employees. In cases where drug testing in the workplace is legal, employers should keep the results confidential per set standards.
7. Medical History
The law requires employers to maintain employees’ medical records separately from other employee records. They also have the responsibility to keep employee medical history and health records confidential. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) aims at protecting patient’s information. Therefore, allowing third parties access to employee medical information without consent can lead to privacy disputes.
The best way to avoid employee privacy issues is by understanding the existing laws about employee privacy. Whether you are an employer or employee, working with a reputable employment lawyer will give you more insight into your rights and limitations to help you protect your interests.