Employment Law: Employee Privacy and Other Topics

Employee Privacy

Balancing your employees' "reasonable expectation of privacy" with your desire to run your business efficiently and effectively is tenuous at best. Fortunately for you and other employers, most courts respect your legitimate business practices and needs. As such, you can take certain actions to ensure that your workplace runs effectively, safely, and fairly.

The first thing you must do is to establish what the "reasonable expectation of privacy" might mean. If you believe that too many of your workers are surfing the Internet, going to sites that have nothing to do with work, you can establish a policy that allows you to monitor your employees' computer usage. By establishing a policy and having it posted and written explicitly in your employee handbook, you have notified your employees that their "reasonable expectation of privacy" is not valid in this case. By continuing to work for you, your employees are giving tacit permission for you to monitor their computer usage, and this has been upheld in the courts.

You can even have your employees sign a form that gives you permission to monitor them in the workplace and keep this in their personnel file. By giving a written statement of your procedures and policies in regard to privacy, you are protecting yourself from litigation at some point in the future.

There are a few areas where you may not use any type of surveillance, and that is in a restroom or changing room area where the reasonable expectation of privacy would be considered to be violated in most cases.

Generally speaking, you have the right to keep track of what your employees are doing while they are at work. It is considered a legitimate business activity. By doing so, you can help eliminate theft, safeguard confidential information, protect your employees against harassment and discrimination, and make sure that all work property is being used for work purposes only.

Testing: Urine and Lie Detector

Lie detector tests: The Employee Polygraph Protection Act (EPPA) prohibits the use of a lie detector test to be used in any employment situation. This includes not only a polygraph test but also voice stress analyzers. Under this law, you may not even request or suggest that your employees subject themselves to such a test. You are further prohibited from firing an employee should that person refuse to take any sort of lie detector test.

Should there be an investigation, an employee can be required to sit for a lie detector test, but it can have absolutely nothing to do with that individual's employment. There must be reasonable suspicion against an employee determined by an ongoing investigation that might allow you to request such a test. Under these circumstances, you must give your employee an opportunity to obtain legal counsel, provide at least 48 hours' notice prior to the test, and tell the employee the reasons for requesting the test, along with a list of all the questions that will be asked during the test. Furthermore, the employee has the right to stop the test at any time.

Urine test: Requiring a drug test must have a reason. If your employees are to be driving or using heavy machinery, it is appropriate to have a drug-free workplace. Or, if you can prove that you wish to have the testing in order to have lower accident rates or reduced absenteeism, then you may require a drug test. Anyone who decides that a drug testing program is necessary would be wise to outsource this activity. The outside consultant can administer the program on an ongoing basis, make sure that the program is run professionally, and avoid violating any local laws or statutes. Further, the consultant will accept responsibility for ensuring that the test results are fair and accurate. An outside consultant will bear the responsibility should there be a breach of confidentiality if ever the results were allowed to be revealed or falsely reported.

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The situation around drug and alcohol testing can create some tension between you and your employee because you both have differing reasons for requiring a drug test or avoiding one. As an employer, you believe that having a drug- and alcohol-free workplace makes it safer for all your employees, customers, and the public in general. Your employees are still struggling to ensure their "reasonable expectation of privacy." By having an established policy, with verifiable reasons that establish the need for drug and alcohol testing, you put yourself in a strong position to be allowed to require such testing of your employees.

Surveillance and Investigations

As stated previously, as an employer, you have the right to ensure that your workplace is safe and productive. To this end, you may be allowed to install surveillance cameras around the workplace as long as you do not violate the "reasonable expectation of privacy," and you have a valid reason for the surveillance. Perhaps you are trying to halt employee theft or ensure safety in parking garages. With such reasons, surveillance is a reasonable step on your part. Restrooms and changing rooms have a reasonable expectation of privacy and you may not install cameras in those areas of your workplace.

Surveillance outside the workplace falls under different rules. You might feel the need to prove that an employee who is collecting workers' compensation for an injury is malingering and really not as injured and incapacitated as stated. A private investigator may be allowed to follow that worker and take photographs or videos of that individual participating in activities he or she claims to be unable to do. This is done surreptitiously outside the workplace but really does not count as an invasion of privacy. If the investigator asks questions of that employee's friends and neighbors as well as taking video evidence, this could be construed as an invasion of privacy.

Personnel Records

The files you keep on each of your employees are considered to be filled with confidential information. Keep these files under lock and key. These files should be available only to individuals who have a legitimate business need to access them. Everyone is to be informed that the information kept in employee files is confidential and must remain so. The employee is allowed to see his or her file. Without a subpoena, no one else may do so.

You may actually have to keep two sets of files, one with all the employee's confidential information in it and the second with the employee's I-9 form, Employment Eligibility Verification. In this way, when managers access the file for annual reviews and possible promotions, they will not be allowed to use an employee's immigration status as a means of discrimination against that employee. Also, when government agencies come into your workplace to inspect all your I-9 forms, the confidential information on each employee will be held in a separate file.

Alternative Work Arrangements

In today's world of economic downturn, you need to look at ways to entice employees to work for you in somewhat nontraditional ways. It used to be that unless an employee would work 40-plus hours a week at your workplace, you were not interested in hiring. Now it appears that more and more potential employees are looking for ways to work that are more flexible than the traditional ways.

In this tight labor market, you have to recognize that in order to compete for good quality employees, you have to see and address these trends. Employers who are more willing to be flexible and creative will gain much in terms of worker satisfaction. Satisfied workers are less likely to leave for a better job; they are more productive, and far less likely to bring in a union.
Telecommuting: This means that your employees work from a remote location and connect to the office through the Internet on a computer and other high-tech communications equipment. There are upwards of 16 million employees who telecommute for at least part of the workweek. It is likely that this number will grow as our economy moves away from goods-based service to service- and information-based service.

Many employers fall into the trap of being controlling and needing to have their employees on site for eight hours a day. There is no reason a customer service representative or a computer programmer cannot work effectively from home. Only you can determine which jobs can be done effectively through telecommuting. Once you establish this as a viable option, you may be pleased to realize that your overhead will decrease because you will have less turnover in your employees and you will not need as large an office space, which subsequently lowers utility bills and the need for furnishings. As long as you take time to appropriately select your telecommuting employees, your productivity should improve rather than diminish. You also will be able to keep your really good employees by offering them choices in their working environment.

Contrary to common belief, many people are self-driven and work very effectively from home. Many people find that they work far better without the distractions found in an office environment. Establishing a virtual office for such employees would be well worth your time and effort. Telecommuting encourages your employees to work independently and develop their own problem-solving skills. Even Congress is working to give companies incentives to develop telecommuting programs.

Flextime: With this option, your employees work 40 hours a week but not necessarily during your 9-to-5 core hour times. Instead, you and your employee agree to some alternate arrangement that yields 40 hours. Some employers have employees work four 10-hour days, with a regular set of three days off. If you can accommodate the needs of your employees without significant loss of productivity or disruption in the work schedules, it might be in your best interest to consider flextime.

Some employees have the mistaken belief that flextime means all they have to do is put in 40 hours a week whenever they fit them in. This does not meet the needs of most employers, as they are unable to reshuffle the workweek tasks to suit an employee's day-by-day whim or convenience.

It is true that flextime will not work for all positions. There are other ways of covering such needs that we will discuss shortly.

Flextime can actually be a good way to establish an accommodation for an employee with a disability, such as one who has a regularly scheduled medical procedure like dialysis. As with all other employment decisions, make sure you do this on a nondiscriminatory basis.

When considering alternative schedules, remember that if your nonexempt employees work more than 40 hours in a given week, you must then pay overtime.

Part-time workers: Remember our admonition to work around your valuable employees. Any employer who has been in business long enough runs against the situation when a valuable employee can work only on a part-time basis. Rather than taking that "all or nothing" approach, consider using that valuable employee for the hours that he or she is really available. In this way, you both win: Your employee can continue to be productive without the constraints of a 40-hour workweek, and you do not lose a valuable employee.

Job-sharing: This variation of part-time employment blends the hours of two part-time workers to meet the demands of a single job. The job is considered to be a single position but can actually reduce your overtime pay commitments because neither worker is likely to log more than 40 hours in a single week.