Employee Privacy

Author: Yana St. Clair, Esq.

Employee Privacy

With the unprecedented development of technology and the increased amount of gadgets that can be used for monitoring and surveillance, employee privacy has become a relevant issue in the last decades. The term encompasses several employment issues that are increasingly becoming important nowadays.
Providing legal provisions to shield employees from excessive and unnecessary intrusion to protect personal dignity has become a major legal concern. The increased surveillance at work facilitated by the easily available monitoring devices of modern technology is putting pressure on the employee/employer business relationship, which in many cases instead of improving business performance is hindering productivity, and is in grave contradiction to modern-day management strategies.

Thus, modern legislature is faced with the obligation of providing protection to employees from the increased pressure on revealing sensitive information and personal matters. Employee privacy covers the following issues:

  • Polygraph testing
  • Drug and Alcohol testing
  • Searches of employees
  • Records and references
  • Monitoring of employees 

Since these concerns can be encountered by any working individual in almost any business environment, this column will dive deeper into each one of them with the hope to provide basic information for guidance and protection.

Polygraph Testing is used by some employers to screen prospective applicants and to investigate employee thefts, or in any other number of circumstances when honesty comes into issue.  The increased usage of polygraph and other lie detector tests, and techniques in the last decades, has raised concerns, which have provoked sporadic actions in many states in the U.S.  The too personal questions asked by test examiners, and the impact of such tests on employees, poorly affects job security, personal privacy in the work place, and in many instances is threatening the work environment. This led the U.S. Congress to pass the Employee Polygraph Protection Act (EPPA) in 1988, under which an employer may not:

  • Require, suggest, request, etc... the use of lie detector tests
  • Use, accept, refer to, or inquire about such tests' results and,
  • Discriminate and retaliate on the grounds of such tests' results, or on the refusal of taking the above (Mallor et all., 2008, p. 1274)

The EPPA however, cannot be enforced on certain governmental, and security employers including, but not limited to national security and defense.  It also excludes firms and producers of controlled substances. The act however, imposes restrictions on the disclosure of discussed  tests' results.
The Employee Polygraph Protection Act is enforced by the Labor Department in the U. S. and violations of the issued regulations can be resolved in court.  As a result, the wronged party may be entitled to monetary compensations, reinstatement and promotion.

Drug and Alcohol Testing: Pursuant to the realization that the use of drugs and alcohol at work can impede job performance and threaten workers' safety, not to mention the illegality of elicit drugs, such tests are increasingly being imposed on employees and job applicants.
The abuse of drug and alcohol testing by public employers can be attacked under the Fourth Amendment's search and seizure provision, and private employers as a general rule have no constitutional protection. Depending on each state's legal regulations, a wronged employee may file tort suits for invasion of privacy or infliction of emotional distress.
Regardless of the existing protection, private sector drug testing is required by federal law and the Transportation Department of the U. S. when public and private safety is at stake as in industries occupied in mass transportation, or whenever sensitive positions are involved.

Due to the importance and the sensitivity of employee privacy, the rest of these issues will be addressed in the next column.

Power. Flexible. Easergy.
BeijingSifang June 2016