Understanding employee privacy
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Employee Privacy from the point of view of the employer: -What employers can and cannot monitor, review, and access in regards to their employees -Workplace searches -Electronic monitoring Employee Privacy from the point of view of the employee: -What employers should be doing to protect the privacy of their employees -Proper recordkeeping -Prevention of ID theft in the workplace After the presentation, Brittany will take questions from webinar attendees during a Q&A session. This webinar was posted on December 1, 2011 and presented by Brittany Cullison.
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Understanding employee privacy
- 1. Understanding Privacy in the Workplace Presented by Brittany Cullison, PHR December 1, 2011
- 2. Important Notice • I am not an attorney. • This is not a substitute for experienced legal counsel. • This is not legal advice.
- 3. What to expect • Laws that govern privacy in the workplace • What employers can monitor-- and the right way to do it • Employer’s obligations to protect employee’s private information—and best practice guidelines
- 4. What governs privacy in the workplace? • Fourth Amendment – Not applicable for private employees, but offers protection in some cases for public employees • Electronic Communications Privacy Act – Governs the monitoring and recording of employee electronic communications
- 5. What governs privacy in the workplace? • FCRA and FACTA – Promotes confidentiality, accuracy, relevancy, and proper use of that information • EPPA – Prevents use of lie detectors in employment practices
- 6. What governs privacy in the workplace? • ADA and FMLA – Recordkeeping and confidentiality of employee medical information • HIPAA – Privacy of personally identifiable health information • GINA – Restricts employers from acquiring and disclosing employee genetic information
- 7. What governs privacy in the workplace? • Identity theft laws – Federal and state level • Common Law • Contractual Privacy Claims
- 8. Employer Rights • Electronic Monitoring – Computers – Emails – Internet Usage- Social Media – Telephone • Video Surveillance • Workplace Searches
- 9. Electronic Monitoring: Computers • Company issued computers – Employers can monitor – Should have clear policy that dissolves any expectation of privacy • “Personal” files, password protected documents • Personal Computer used for Work – May be subject to discovery in litigation, but typically only if subpoenaed
- 10. Electronic Monitoring: Emails • Company email – Property of the company – Employer can access • Personal email accessed on company computer – Employer cannot access without employee giving consent – Stored Communication Act
- 11. Electronic Monitoring: Emails • Stored Communications Act – Established in 1986 – Title II of the ECPA – Prohibits unauthorized access to electronic communications stored on a third party site
- 12. Electronic Monitoring: Emails • Company email – Property of the company – Employer can access • Personal email accessed on company computer – Employer cannot access without employee giving consent – Stored Communication Act
- 13. Electronic Monitoring: Internet • Internet usage on company device – Employers can monitor – Should have a written policy • Social Networking – Public vs. private – Use caution when disciplining an employee for disparaging comments found – Section 7 of NLRA- applies to union and non- union
- 14. Electronic Monitoring: Internet • Social Networking – If someone has access, they can share access – Should have a written Social Media policy
- 15. Electronic Monitoring: Telephones • Business telephones – May be monitored when: • employee has given consent or • “Business Extension” exemption – Personal calls on business phones cannot be monitored • Company issued cell phones – Should have a policy that dissolves expectation of privacy – Searches, reviews, and monitoring should be done only for legitimate, business purposes
- 16. Video Surveillance • Acceptable in open and public work areas • If recording audio, must comply with ECPA • Limit access to the recorded material to designated management
- 17. Workplace Searches • Reasonable expectation of privacy – Company property vs. Employee Property – Written policy • Justified Search – Reasonable suspicion – Violation of another company policy • Drug and Alcohol Policy • Weapons in the Workplace • Confidentiality
- 18. Workplace Searches • Reasonableness – Discretion – Other investigatory methods exhausted – Appropriate scope • Never force an employee to submit to search • Have another witness present during a search
- 19. Employer Responsibilities • Identify Theft Prevention – Policy, Procedure and Training • Confidentiality of Medical Information • Additional confidentiality and recordkeeping practices • Clearly communicate workplace monitoring policies • Train employees and managers
- 20. ID Theft Prevention • Evaluate information security and disposal – How easy is it for someone to access your office during business hours? – How long documents stay at the printer before some one retrieves them? – Are documents that contain personal information left out unattended? – Are computer screens being locked every time someone leaves there desk?
- 21. ID Theft Prevention • Are cabinets and drawers being locked? • Are emails that contain personal information being sent securely? • Are documents properly shredded when no longer needed? • Who in the office has access to sensitive information?
- 22. ID Theft Prevention • Develop a protection plan – Conduct a “walk through” – Identify potential risks – Create easy to follow guidelines and procedures • Educate your employees – The importance of protecting personal information. – Measure that the company will take to began this process. – How the will be enforced.
- 23. ID Theft Prevention • Have a Breach Plan – Notify employee, law enforcement and possibly FTC – Notify credit bureaus – Conduct internal investigation – Take steps to minimize or prevent additional loss
- 24. Confidentiality of Medical Information • Do not request medical exam or make inquiry unless employee poses direct threat or it’s job related and consistent with business necessity • Medical information should be kept confidential and in separate file – FMLA certifications – Worker’s Comp reports – Medical exam results – HIPAA regulated documents, if applicable
- 25. Confidentiality of Medical Information • Train supervisors on how to respond • Educate employees on what is appropriate to disclose in the workplace
- 26. Additional Confidential Recordkeeping • Consumer Reports – Reports must be disposed of properly under FACTA • Investigations – Confidential to protect witnesses and accuser
- 27. Policies • Electronic Monitoring – Define system covered – Business-use only – Discuss prohibited use – Explain consequences – Inform of employers’ right to monitor • Telephone Monitoring – Define purpose of monitoring – Discuss calls that appear to be personal
- 28. Policies • Social Media – Define what social media is – Apply it to business and personal – Compare to other policies • Workplace Searches – Define purpose and search areas – Ensure that a search is not an accusation – Refusal may lead to disciplinary action or termination
- 29. Summary • Privacy in the workplace is a combination of employer rights and employer responsibilities • The key to monitoring employees is to dissolve the expectation of privacy • Employee information protection is in the hands of HR