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Employment Law: Employer E-Newsletter

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Employee Privacy Rights

Many employers, afraid of hiring an employee who will steal, break the law, or otherwise subject the employer to liability, have made a practice of conducting credit or background checks of applicants. In addition, once an employee has been hired, the employer often takes additional steps to ensure that the employee spends his or her time doing the employer's business, perhaps by monitoring telephone calls or Internet usage. An employer who believes that an employee has stolen from the employer may ask the employee to take a lie-detector test, or search the employee's desk or locker. Unfortunately, each of these attempts by the employer to protect its business may subject the employer to liability, if done without regard for employee privacy rights.

The least understood rights in the workplace are employees' privacy rights. A public employee (that is, an employee of a federal, state, or local government entity) has a right to be free of unreasonable searches and seizures by his or her employer. Likewise, a private employee has some privacy rights, in most states, and those rights may protect employees from searches that might be considered offensive to the reasonable person and are of areas in which the employee has a reasonable expectation of privacy. Therefore, an employer who provides its employees with desk drawers that lock, or a locker that the employee locks with his or her own lock, may have created a reasonable expectation in the employee that the desk or locker is a private area that may not be searched by the employer. An employee's private mail, handbag, and person are also often considered private and may only be searched where the employer has made it clear that the employee does not have a reasonable expectation of privacy in these areas. An employer may limit an employee's expectation of privacy by enacting a lawful drug testing or security policy and putting the employee on notice that items brought on the employer's premises may be searched.

An employee's expectation of privacy also protects employee information, such as medical information. The federal Health Information Portability and Accountability Act (HIPAA) protects almost all employee medical records and classifies them as confidential. An employer may not disclose any of this information without the employee's specific consent. Employees have some limited privacy rights in their telephone conversations and voice mail messages. In most states, employers may monitor or disclose the content of such messages only if they have the employee's consent to do so or if they do so in the "ordinary course of business." Acceptable monitoring includes listening to a random sample of sales or customer service calls to coach performance, with employees' knowledge, or monitoring an employee who is suspected of using a workplace telephone or voice mail for unauthorized or non-business related activities. The employer may be required to notify the employee that such monitoring is taking place.

In contrast, employers are free to monitor e-mail that has been exchanged or stored on their own workplace systems. Employees have very little right to privacy in their use of e-mail and the Internet at work. Employers may monitor or block employee use of the Internet, and often have specific policies in place to regulate their employees' behavior online.

In order to conduct a background or credit check of an applicant or an employee who has applied for promotion, an employer must comply with the federal Fair Credit Reporting Act, as amended by the Fair and Accurate Credit Transactions Act, which requires that the employer obtain written permission from the applicant or employee in order to conduct such a check. If the employer uses the report to turn down an applicant or deny a promotion, it must provide the employee or applicant with a copy of the report and an explanation of the subject's right to protest to contents of the report to the compiling agency.

With limited exceptions, an employer may not ask or require an applicant or employee to take a lie detector or polygraph test, or retaliate against the applicant or employee for refusing to take such a test. If the employer manufactures controlled substances and the applicant or employee would have access to those substances, or if the employer is an armored car, security alarm or security guard company, and the applicant or employee would be protecting facilities involving health, safety, national security, or currency, then the employer may require such a test. In addition, such a test may be required if the employee is reasonably suspected of involvement in a workplace incident that has resulted in damage to the employer.

Other state, federal, and judge-made employment laws also create employee rights, and the variety and scope of employee rights mean that employers should always seek competent legal advice to guide their employment decisions.

How Employment Law Attorneys Can Help Employers

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How Employment Law Attorneys Can Help Employers

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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

Seiller Waterman LLC
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Louisville, KY 40202

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Fax: 502-583-2100
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