Employee privacy is an ever-changing, complex issue. On one hand, employers would like to know as much about their employees as needed to make the right personnel decisions. For instance, school districts need to know that they're bus drivers are not drinking alcohol before or during their shifts. Therefore, a preemployment drug and alcohol test -- and perhaps random tests during their employment -- makes good sense in that case. But it's probably not necessary (and illegal in some states) for a restaurant to check the credit scores of prospective wait staff.
When it comes to workplace privacy, there are both legal and practical considerations to take into account. Certain activities -- subjecting employees to lie detector tests, for example -- are forbidden by law. But even some acts that are perfectly legal (such as checking employees' purses and pockets before they leave) can have the effect of driving away otherwise qualified candidates.
This section explores the various legal issues surrounding privacy in the workplace. Just click on a topic below to learn more.
Monitoring Communications and Internet Usage
Current technology makes it possible for employers to monitor all of their employees' computer and telephone usage. In fact, office workers should assume that all of their phone calls, emails, and Internet destinations are being monitored. While it may seem overly invasive, it is generally legal as long as it involves company-owned property. The employer, it is argued, has a compelling interest in making sure its equipment is being used properly and for (primarily) business purposes.
This accumulated data of Internet and email usage also provides evidence to help employers prove employee wrongdoing in employment disputes. But keep in mind, this data also could be useful for employees who file harassment, discrimination, or other employment-related lawsuits.
The monitoring of workplace telephone usage also is generally allowed. However, employers may not monitor an employee's personal phone, or even a company phone if it is a personal call (unless the employee has consented).
Drug testing also is a rapidly changing area of workplace privacy law, particularly in light of changing marijuana laws. Employers generally have the right to conduct preemployment drug tests, regardless of how an employee's substance use would affect her work. For certain high-risk occupations, such as commercial trucking, federal regulations require drug and alcohol testing. And while the Drug Free Workplace Act of 1988 requires employers that receive federal funding must be drug-free, the Act does not specifically allow drug testing.
There are certain limits, though. Some state laws have limitations and regulations in place for employers that choose to conduct drug tests. But generally, employers may not drug test their employees (or job applicants) selectively or covertly. For instance, an employer may be sued if it conducts drug tests only on men with long hair and beards. In addition, state laws often limit the circumstances in which post-hiring drug testing may be administered (primarily limited to high-risk jobs or legitimate concerns about on-the-job drug use).
With the legalization of medical marijuana (and recreational marijuana use in some states), there has been some resistance to drug testing. But despite several challenges in both federal appeals and state appellate courts, employers generally have the right to fire employees who test positive for marijuana even if it is legal in that state.
Medical and Genetic Information
An individual's genetic information and medical records are considered strictly confidential, since they can be used to discriminate against current or prospective employees. For instance, an employer may decide not to hire an otherwise qualified candidate with a serious medical condition out of fear that his medical needs would be a drag on the company health care plan. However, employees often share limited medical information with their supervisors in relation to medical leave.
Click on a link below to learn more about employee privacy, or contact an employment law attorney in your area.