Privacy Issues

Learning Objectives

By the end of this chapter, you should be able to:

• Consider the impact of the doctrine of respondeat superior when drafting and implementing policies and procedures.

• Formulate policies and procedures for the lawful acquisition, dissemination, and retention of information related to applicants and employees.

• Undertake lawful employee drug, alcohol, and genetic testing.

• Monitor employee work-related behavior.

INTRODUCTION

Is an employer ever justified in looking into an employee’s background or what the employee is doing on a personal level at work? Because of potential liabilities and damage to its business interests an employer has from the acts of its workers, the answer is an unequivocal “yes.”

Liabilities and damage to business interests aren’t limited to physical acts. “Cyber loafing,” irreparable damage to reputation, and loss of confidential information can occur with just strokes on a keyboard or the uploading of a video.

In conflict with the employer’s legitimate business interests in obtaining and maintaining information about a job applicant or employee—as well as in observing, evaluating, and regulating employee conduct related to the work relationship—is the employee’s interest in individual autonomy and the right to be left alone. In other words, legitimate business interests versus privacy.

As this chapter will explain, there is no general federal law creating or protecting a “zone of privacy” in the workplace. The U.S. Constitution’s First Amendment free-speech clause and the Fourth Amendment’s protection against “unreasonable searches and seizures” apply only to action by government entities, not to private sector employers, including associations. By and large, employees leave their constitutional rights at the workplace door. A few state constitutions do extend speech and search protection to private-sector employees.

The key legal issue in privacy cases is this: Did the employer, by what it did or failed to do, create a reasonable expectation of privacy by the employee? If the answer is “yes” and the employer did not meet that expectation, then it may be held liable for invasion of privacy.

The challenge for an HR professional in this area is balancing the need to not create an expectation of privacy in the workplace that would give rise to litigation, while still protecting and respecting your employees’ legitimate interests. For example, if there is no expectation of privacy then the basic rule is that an employer may listen to a telephone call to monitor employee performance or to enforce organization policy. However, the Electronic Communications Privacy Act, explained in this chapter, and case law both hold that the employer may listen to only so much of the conversation as is necessary to determine whether the call is personal or business. If personal, then you must stop listening.

You can both protect your employer’s legitimate business interests while respecting your workers by:

• Clarifying what privacy rights the employer is guaranteeing them in the workplace, if any. Basically, define what is acceptable, business-related supervision versus “snoopervision.”

• Training managers and supervisors in what constitutes appropriate, work-related oversight of employee behavior—and what does not.

Those actions will result in a mutuality of understanding by all parties of the nature and scope of their respective rights, and will serve to foster an environment of mutual respect.

Is privacy clearly defined in the law? Unfortunately, no. What exists is a complex and confusing set of federal and state laws, state constitutional doctrines, and a variety of (and sometimes conflicting) court cases based on tort (civil wrongs) and contract theories.

Adding to the confusion is that different laws dealing with employment discrimination, defamation, intrusion upon seclusion, occupational safety and health, physical impairments, personal health information, etc., have different objectives and mandates.

In trying to come to grips with the various laws and court cases, you should understand the nature of the legal concepts underlying them and then take action as appropriate.

THE DOCTRINE OF RESPONDEAT SUPERIOR

The employer is liable for the wrongful acts of its employees committed in the course of their employment because of the well-settled doctrine of respondeat superior (“let the master answer”). This concept is also known as “vicarious liability” or “imputed liability.”

The theory behind respondeat superior is that the employer (the “principal”) controls, or has a right to control, the time, place, and method of doing work, controls the employee’s (the “agent’s”) behavior and must then assume some responsibility for the agent’s actions. When the facts show that an employer-employee (principal-agent) relationship exists, the employer can be held responsible for the injuries caused by the employee in the course of employment.

Employees act within the scope of their employment when they perform services for which they are employed or when they do anything that is reasonably related to their employment. The issue is whether their action(s) were foreseeable—not whether the actions were authorized or forbidden by the employer. For example, if the employer empowers a supervisor to significantly impact an employee’s working conditions or compensation through annual performance reviews, it is foreseeable that the supervisor might misuse to that power by seeking sexual favors in return for a more favorable review. And, if that occurred, the employer would be liable for the supervisor’s actions.

An analysis of four questions can help you determine if the worker acted within the scope of their employment:

1. What was the purpose of the employee’s act(s)?

2. Did the employee have authority, either express or implied, to perform the act(s) in question?

3. Was the act(s) reasonably foreseeable by the employer?

4. When was the act committed—for example, was it during work hours? (This last consideration is a minor one. The others carry more weight.)

A forbidden act is within the scope of employment for purposes of respondeat superior if it is necessary to accomplish an assigned task or if it might reasonably be expected that an employee would perform it.

Exercise 4-1 Scope of Employment Foreseeability

Instructions: Read the scenarios and answer the questions posed.

Scenario 1: Charles and Stephen both work for Piccadilly Cafeterias. The company hosts a Christmas party. Attendance is voluntary. Both men leave the party which is held on the company’s premises. Charles is a passenger in an automobile hit by another car, driven by Stephen. Stephen had become intoxicated at the party, and later explained that he was “fooling around” when he drove his car into the left-hand lane of the road, lost control, and struck the other car, injuring Charles. Because Stephen was intoxicated as a result of having drinks provided by their employer at a company-sponsored event, Charles sued Piccadilly under the doctrine of respondeat superior.

Question: Did Charles ultimately win the lawsuit? If so, why? If not, why not? Select the best answer.

a. Charles wins. Because both employees work for the same employer and one worker was injured by the other the employer is liable.

b. Charles loses. Stephen was not acting within the scope of his employment because attendance at the party was voluntary and the injury took place after the parties had left the employer’s premises.

c. Charles loses. He could have prevented Stephen from driving in a reckless manner.

d. Charles wins. He was at a company sponsored event.

Scenario 2: ANA, which does business as A-Mart, owns and operates a convenience store. Dorothy Lowry testified that on August 16, 1995, she went into A-Mart to buy a jar of mayonnaise. She commented to the employee behind the counter, Yun Byeyong, that the prices were too high. Byeyong became verbally abusive toward her, reached toward her over the counter, and then ran around the counter and reached for her. Lowry testified that, in her attempt to evade him, she ran into a potato chip rack and a burglar bar next to the front door, felt his hand on her back or shoulder, and fell on the ground outside the store. She was injured. Finally, she testified that Byeyong followed her outside and kicked her car door.

Question: Did Dorothy Lowry ultimately win the lawsuit? If so, why? If not, why not? Select the best answer.

a. Dorothy Lowry lost. It is not ordinarily within the scope of an employee’s authority to commit an assault on a third person

b. Dorothy Lowry won. Yun Byeyong was the representative of the store and, therefore, his actions are directly attributable to his employer.

c. Dorothy Lowry lost. Under the circumstances the store clerk reasonably believed she was going to leave without paying for the merchandise.

d. Dorothy Lowry lost. She used “fighting words” and therefore the clerk’s actions were justified.

Solutions:

Scenario 1: (b) Charles loses. The court felt that Stephen was not acting within the scope of his employment because attendance at the party was voluntary and the injury took place after the parties had left the employer’s premises. See Sayles v. Piccadilly Cafeterias, Inc., 242 Va. 328, 410 S.E.2d 632 (1992).

Scenario 2: (a) Dorothy Lowry lost. It is not ordinarily within the scope of an employee’s authority to commit an assault on a third person Usually assault is the expression of personal animosity and is not for the purpose of carrying out the employer’s business. The nature of the employment can involve at times the use of force. For example, where the employee’s duty is to guard the employer’s property and to protect it from trespassers so that the act of using force may be in furtherance of the employer’s business, making it liable even when greater force is used than is necessary. That was not the case here. See ANA, Inc. v. Lowry, No. 01-98-01097-CV Tex. App. (2000); Viking v. Circle K Convenience Stores, Inc., 742 S.W.2d 732, 733-34 (Tex. App.-Houston [1st Dist.] 1987, writ denied.

Contrast the case of Durand v. Moore, 879 S.W.2d 196, 198 (Tex. App.-Houston [14th Dist.] 1994, no writ). A night club doorman had responsibilities including “checking IDs, enforcing the dress code, and coordinating the admission of customers into the club.” The doorman assaulted two people standing in line, but the appellate court found there was evidence showing that the employee’s “assault of [the customers] was overzealous enforcement of the criteria and procedures used to select waiting customers for admittance into the club.” In particular, Durand noted that “there was evidence that [the doorman] had the responsibility to control the admittance of customers into the club” and that the altercation arose from the doorman’s preferential treatment of certain customers. The court determined that the doorman acted within the course and scope of his employment.

As these cases indicate, an employer will be held liable for its employee’s assault on a third party only if that assault stems directly from the employee’s exercise (however inappropriate or excessive) of a delegated right or duty.

Subject to the issues raised in the following section of this chapter, if the worker’s wrongful conduct was motivated by purely personal reasons unrelated to the employer’s business, then the employer is not liable.

NEGLIGENT HIRING

Potential employer liability for negligent hiring is a primary reason for you to verify the information provided on an application and to undertake a pre-employment background investigation suitable to the position in question.

A claim of negligent hiring is not based on an employee’s actions being attributed to the employer. These types of claims are based on the employer’s own direct negligence in hiring, supervising, training or retaining an employee. An action for negligent hiring tries to hold an employer accountable for injuries caused by an employee acting outside the scope of their employment if:

• The employer knew or should have known, based on reasonably available information, that the worker had a propensity to act the way he or she did.

• The employer did nothing to prevent the employee from committing the wrong.

The elements of negligent hiring are that:

• The perpetrator and the victim would not have met had the employer not hired the wrongdoer.

• If the employer had performed a reasonable background check or engaged in other reasonable hiring practices it would have determined that the perpetrator was unfit for the position.

• The employer did not exercise reasonable care to select an employee competent and fit for the work assigned to him or her.

• The employer hired the wrongdoer.

• The victim was harmed by the employer’s negligence.

BACKGROUND CHECKS

In certain industries—such as child care and education, or employees associated with the sale of securities—you may be required by law to conduct background checks on your employees and may be precluded from hiring employees convicted of particular offenses.

Regardless of whether the law requires your company to do so, conducting background checks makes good sense. It allows you to verify the accuracy of information in a prospective employee’s job application form and potentially prevents future negligent hiring lawsuits.

Various federal and state laws come into play when you are undertaking a background check, including:

• The Fair Credit Reporting Act (FCRA), which defines the standards for employment screening. FRCA was developed by the federal government to ensure that accurate and updated information is used when credit-reporting decisions are made.

• The Driver’s Privacy Protection Act (DPPA), which regulates how information from DMV records can be released and shared.

• The Gramm-Leach-Bliley Act (GLBA), which regulates the release of information maintained by financial institutions.

Doing It Yourself

Although there is no legal requirement that you obtain a consent and release from a job applicant to undertake a background check related to them, without one it is very difficult to obtain meaningful information from either agencies or former employers.

Many application forms will contain a release-of-information consent statement authorizing you to undertake a background check, although a standalone release form allows for more versatility of use. See Web Exhibit 4-1 at www.amaselfstudy.org/go/HRPractice for a sample release-of-information consent form.

In order to undertake a truly in-depth background check, you will need to have:

1. Applicant’s full name and social security number.

2. Applicant’s age, and date and place of birth.

3. Applicant’s current address and telephone number.

4. Is current residence a rental or does the applicant own it?

5. Applicant’s past addresses for the last 10 years.

6. Name and address of landlords for past 10 years, if applicable.

7. Applicant’s educational background and highest degree earned.

8. Applicant’s military service record, date and type of discharge.

9. Applicant’s passport number and date of expiration, if applicable.

10. Name, address and telephone number of current employer.

11. Names and addresses of employers for the past ten years.

12. Name and address of current bank.

13. Three credit references.

14. Driver’s license number, state of issue, and expiration date.

15. Professional licenses or certifications.

16. List of vehicles or real property owned.

17. Names, addresses, and telephone numbers of three relatives not living with applicant.

18. Names, addresses, and telephone numbers of three personal references.

Be aware that unsuccessful applicants may argue that questions that reveal age, income, residence (which may reveal socio-economic status), are discriminatory. Only ask for what you really need to conduct the type of background check relevant to the job in question.

Because of the Americans with Disabilities Act, it is not appropriate to make pre-employment medical inquiries of either an applicant or external sources.

Available Resources

The internet has opened the door to many avenues of background inquiry, including:

• Public records such as births, marriages, divorces, and deaths.

• Financial searches that indicate financial standing and responsibility.

• Property searches that reveal real estate ownership.

• Vehicle searches that list motor vehicles owned by the subject.

• Court records that contain data pertaining to federal an civil judgments, federal and state bankruptcies, tax liens, and evictions.

• Corporate, partnership, and professional licensing information maintained by the Secretary of State. These records are open for examination and usually available online.

• Driver history records that report traffic citations as well as DUIs and DWIs—both of which can indicate poor driving habits.

A thorough criminal background check includes searches of local and county criminal records, state criminal courts, national Department of Corrections and sex offenders databases, and the OFAC Patriot Act Search.

Answering Inquiries

Answering inquiries from prospective employers of former employees or questions about current workers from lending institutions and others opens the door to the former or current employee charging you with invasion of privacy, defamation, or violating a state’s law regarding employment “blackballing”—in other words, actively misrepresenting facts so as to prevent or attempting to prevent a former employee from obtaining a job. Therefore, great care must be taken when answering those inquiries.

Unless whoever is contacting you for background information regarding a current or former employee provides you with a signed release from that person, most attorneys (including this author) advise their clients not to be forthcoming when organizations call them and attempt to get background information. However, it is generally alright to respond to the following four questions even without having been provided with a consent and release:

1. Did the applicant work for you?

2. What were the applicant’s dates of employment?

3. What was the applicant’s job title or general job duties?

4. Did the applicant make (compensation)? DO NOT volunteer information regarding the ex-employee’s compensation. It is alright to confirm or deny what the caller states that the former worker represented to them, but not to offer any information yourself.

Answers to these four questions are based on easily confirmable and defensible fact and pose no meaningful legal danger.

DO NOT answer medically related questions. See the Americans with Disabilities Act (ADA) in this chapter.

Making inquiries

From both a legal and an objectives standpoint, there is a major difference between your actions in making inquiries versus answering them.

Answering inquiries without a signed release from the current or former employee in question is fraught with legal danger; and, other than being a good corporate citizen or trying not to violate a state’s anti-blackballing statutes, there isn’t any real corporate objective in answering inquiries. However, there are several legal reasons and corporate objectives in making inquiries—avoiding charges of negligent hiring and obtaining sufficient information upon which to make good hiring decisions, for example.

Except for pre-offer inquiries related to a prospective employee’s medical history or condition that are prohibited by the Americans with Disabilities Act (described later in this chapter), there is no prohibition against asking a former employer detailed questions about the job applicant. You WANT as much information as possible so that you can make good hiring decisions and fulfill your legal duty not to engage in negligent hiring.

When your organization is making its own inquiries rather than outsourcing the effort, some common background inquiries are:

• How long have you known the candidate? In what relationship/capacity?

• What was the candidate’s position? To whom did he or she report?

• What were the candidate’s responsibilities? Scope?

• How did the candidate get along with superiors, peers, and subordinates?

• Describe the candidate’s attitudes and other personality factors.

• What were some of the candidate’s outstanding accomplishments?

• How effective was the candidate in terms of quantity and quality of work?

• How creative was the candidate? How much initiative did he or she display? Motivation level? Resourcefulness?

• Describe the candidate’s leadership ability and responsibility levels.

• What were the candidate’s strengths? Aptitudes? Weaknesses?

• How well does the candidate express him or herself orally? In writing?

• Did the candidate meet deadlines?

• What was the candidate’s salary? Did he or she receive any bonuses? (You can ask these questions—just don’t answer them if they are posed to you in this format.)

• Why did the candidate leave?

• Would you rehire the candidate? (This is probably one of the most important questions to ask, if it is answered honestly.)

• Do you feel that the candidate can work effectively as a (title of job)?

Because of the Americans with Disabilities Act, DO NOT ask medically related questions. See the Americans with Disabilities Act (ADA) later in this chapter.

Using Information Providers

When using an information provider, determine what data is being accessed. What data do you desire and how much are you willing to pay for? Some background checks are limited to a few states or region, while others are truly are national in scope. The costs, response times, and quality of these checks vary widely from company to company.

Consumer Reports and Investigative Consumer Reports

When obtaining background history information on employees/prospective employees, keep in mind that the federal Fair Credit Reporting Act (FCRA), 15 U.S.C. §1681 et. seq., regulates how you obtain and use background history information.

The FCRA applies to consumer reports and investigative consumer reports prepared by consumer reporting agencies (which includes background check vendors, private investigators, and detective agencies) for the purpose of providing information to a third party, such as a prospective employer.

Consumer reports may consist of background reports, credit history checks, and DMV (Department of Motor Vehicles) records. Investigative consumer reports contain information regarding an applicant or employee’s character, general reputation, personal characteristics, or mode of living—obtained through personal interviews with friends, neighbors and/or business associates, as well as through employment verification with prior employers.

If you use a consumer reporting agency to procure background history information you are required to adhere to the FCRA’s steps for compliance, including disclosure and authorization, certification, advance notice of adverse action, and notice of adverse action.

Employers who intend to obtain background checks on employees and applicants need to:

• Provide a written notice to the employee/applicant explaining that a consumer report will be obtained; if an investigative consumer report is to be obtained, the notice must specifically indicate that fact.

• Obtain the employee’s signed consent for the background check in a document separate from an employment application or an employee handbook. See Web Exhibit 4-2 at www.amaselfstudy.org/go/HRPractice for an example of a consent form for a Consumer Report and/or an Investigative Consumer Report.

• Certify to the consumer-reporting agency that the above steps have been followed and that the employer will comply with FCRA.

• Provide advance notice of any intended adverse action to the individual and provide a copy of the report to the individual, along with the “Summary of Your Rights under the Fair Credit Reporting Act,” written by the Federal Trade Commission prior to taking adverse action. (See www.ftc.gov.) The purpose of the notice is to give the individual an opportunity to dispute or explain any inaccurate or incomplete information in the background check report.

• Supply the applicant, upon taking adverse action, with a copy of the report, the “Summary of Your Rights” document and the contact information for the consumer-reporting agency that furnished the report, as well as a statement that the consumer reporting agency did not make the adverse decision and cannot explain why it was made.

Failure to comply with the FCRA provisions can subject employers to damages, including actual damages, punitive damages, costs and attorneys’ fees. Employers may also be liable for fines and/or imprisonment if they knowingly and willfully obtain a consumer report under false pretenses.

MEDICAL INFORMATION OBTAINED DURING THE HIRING PROCESS

Chances are that you will obtain medical information about an applicant even if you are not seeking it. If you do gain such information, you must protect its confidentiality.

The Americans with Disabilities Act (ADA)

Although various federal laws—such as the Family and Medical Leave Act (FMLA), Health Insurance Portability and Accountability Act of 1996 (HIPAA), and the Occupational Safety and Health Act of 1970 (the OSH Act)—apply to medical records, the ADA and its state equivalents are the major laws that HR professionals encounter when dealing with medical information related to job applicants and employees. Your most significant involvement will be in the areas of recruitment/hiring and medical records maintenance and retention.

Regarding privacy, the ADA prohibits medical examinations or inquiries into an applicant’s disability status prior to the employer’s making a job offer conditioned on the individual passing a pre-employment physical that tests the person’s ability to perform the essential functions of the job. The statute does allow post-offer medical exams and inquires; however, it imposes strict limitations on the use and disclosure of medical information. See Chapter 1.

Medical information must be kept in files separate from the employee’s personnel file. In addition, both the ADA (29 CFR 1630.14) and FMLA (29 CFR 825.500) require that medically-related information be kept confidential, with the following exceptions:

• Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations.

• First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment.

• Government officials investigating compliance with the ADA and other federal or state laws prohibiting discrimination must be provided relevant information on request.

• Pertinent information may be provided to state workers’ compensation offices and insurance companies providing health or life insurance to the employee.

In addition, improper disclosure of medical information may expose you to liability for invasion of privacy.

Consumer Reporting Agencies – Section 411, FACT Act

Section 411 of the Fair and Accurate Credit Transactions Act of 2003 (FACT Act) amended the FCRA to provide that a creditor may not obtain or use medical information in connection with any determination of a consumer’s eligibility, or continued eligibility, for credit, except as permitted by regulations or the FACT Act. Section 411 prohibits a consumer reporting agency from furnishing a report containing medical information about a consumer for employment purposes unless the employee has given specific, written consent.

Employers must obtain from the applicant or employee a specific written consent in clear and conspicuous language describing the use for which the information will be furnished. The medical information sought by the employer must be job-related, just as under the ADA and FMLA. For example, this provision would prevent an agency conducting a background investigation from being able to release any medical information inadvertently disclosed while conducting a background investigation unless the employer had already obtained a specific consent from the applicant or employee. In this regard, the legislation adds a further layer of privacy by specifically reminding employers that medical information should not be disclosed except as necessary to carry out the purpose for which the information was initially disclosed, or otherwise permitted by law.

Medical Information under the FACT Act Defined

The FACT Act defines medical information broadly to mean information or data—whether oral or recorded—in any form or medium, created by or derived from a healthcare provider, or the consumer that relates to the past, present, or future physical, mental, or behavioral health or condition of an individual, the providing of health care to an individual, or the payment for the providing of health care to an individual.

Pre-Employment drug tests or screens

Drug tests or post-offer medical examinations received about applicants are not necessarily subject to FCRA.

Reports prepared by healthcare providers and laboratories at the request of an employer are not generally considered a consumer report because such communications fall within a different exception of FCRA. For example, a physician or drug counselor that reports the results of a drug test is not creating a consumer report. However, if an entity obtains copies of drug tests and sells this information to third parties for a fee, then they could be considered a consumer reporting agency and consent would be needed.

GENETIC AND BIOCHEMICAL TESTING

Both federal and state laws make genetic information prohibited territory for most employment decisions.

Federal Laws

Executive Order 13145 to Prohibit Discrimination in Federal Employment Based on Genetic Information (the Order) became law in February 2000. Although the Order states that genetic discrimination is added to the list of forms of discrimination barred by Title VII of the Civil Rights Act of 1964, the scope of the Order does not reach beyond applicants, employees, and former employees of executive branch departments and agencies. It does not cover employees in the private sector.

The Genetic Information Nondiscrimination Act (GINA), which became fully effective in November 2009, is designed to prohibit the improper use of genetic information in health insurance and employment.

Under GINA, the EEOC definition of “genetic information” includes information about an individual’s family medical history. The law prohibits an employer from asking about family medical history during an interview, or at any time after the employee is hired. It also prohibits employers from gathering information about the employee through individual genetic tests, or genetic tests of a family member. Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. Exhibit 4-1 provides six exceptions to the general rule that the employer cannot acquire genetic information.

The law has two parts:

• Title I prohibits health insurance providers from discrimination against an individual based on genetic testing. This makes it illegal for health insurance providers to use or require genetic information to make decisions about a person’s insurance eligibility or coverage.

• Title II forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. An employer may never use genetic information to make an employment decision because genetic information doesn’t tell the employer anything about someone’s current ability to work. You can act appropriately based on an employee’s current inability to adequately and safely perform the essential functions of a job.

GINA applies to employers with 15 or more employees, including private employers, employment agencies, labor unions, and joint labor-management training programs.

xhibit 4-1 Exceptions to Rules Against Acquiring Genetic Information

It is usually unlawful for an employer to acquire genetic information. There are six narrow exceptions to this prohibition:

1. Inadvertent acquisitions of genetic information do not violate GINA, such as in situations where a manager or supervisor overhears someone talking about a family member’s illness.

2. Genetic information (such as family medical history) may be obtained as part of health or genetic services, including wellness programs, offered by the employer on a voluntary basis, if certain specific requirements are met.

3. Genetic information may be acquired as part of the certification process for FMLA leave (or leave under similar state or local laws), where an employee is asking for leave to care for a family member with a serious health condition.

4. Acquisition through commercially and publicly available documents like newspapers is permitted, as long as the employer is not searching those sources with the intent of finding genetic information.

5. Acquisition through a genetic monitoring program that monitors the biological effects of toxic substances in the workplace is permitted where the monitoring is required by law—such as an OSHA requirement, or, under carefully defined conditions, where the program is voluntary.

6. Acquisition of genetic information of employees by employers who engage in DNA testing for law enforcement purposes as a forensic lab or for purposes of human remains identification is permitted, but the genetic information may only be used for analysis of DNA markers for quality control to detect sample contamination.

It also applies to government employers with 15 or more workers, including state and local governments, agencies of the federal executive branch and Congress. Each of these employers is referred to as a “covered entity” in the GINA regulations.

It is also unlawful for an employer to disclose genetic information about applicants or employees. Employers must keep genetic information confidential and in a separate medical file. (Genetic information may be kept in the same file as other medical information in compliance with the Americans with Disabilities Act.)

State Laws

There is a hodgepodge of state laws dealing with genetic information and testing. Although a number of states have passed laws prohibiting certain forms of genetic discrimination, these laws vary widely with some (a) narrowly targeting particular genetic conditions, (b) some prohibiting only certain types of screening but not prohibiting adverse employment actions based on genetic information, and (c) some only addressing genetic counseling and confidentiality.

GINA specifically states that an applicant or employee gets the benefit of whichever law, federal or state, offers the greatest protection.

Exercise 4-2 GINA Violations

Instructions: Read the scenario and answer the questions.

Scenario: A group of workers are sitting in the break room talking. Mary says that she’s worried about her mother, who has just been diagnosed with breast cancer. Jodi, an HR Specialist with the company, asks, “Does that run in your family?” Mary responds that it does.

Question: Does Jodi’s question violate GINA? If not, why not? If so, why?

Question: If Jodi acts on her knowledge will she be violating GINA? If not, why not? If so, why?

Solution: Given her position as an HR administrator within her organization, Jodi probably should be more careful about asking questions regarding co-workers’ medical histories. However, unless she acts on the information she learned in casual conversation, her inadvertent acquisitions of genetic information probably did not violate GINA.

DRUG AND ALCOHOL TESTING

Rules regarding drug and alcohol testing are somewhat predictable.

Public-Sector Employers

The Fourth Amendment to the U.S. Constitution protects us from unlawful searches and seizures by the state (government). The Supreme Court has ruled that blood, urine, and breath tests are searches under the Fourth Amendment; however, whenever there is an overriding interest in public safety and health, especially in heavily regulated industries—for example, transportation—where there is no reasonable expectation of privacy, public entities almost always are allowed to demand drug and alcohol testing of their employees.

Private-Sector Employers

As a general set of rules governing drug testing in the private sector, the following applies:

• Job applicants can be tested for drugs.

• Random or universal testing of employees without any probable cause to believe there is a problem is generally prohibited except in cases (jobs) involving health, safety, or the public trust.

• If the employer reasonably believes an employee has a drug problem at work, it can demand testing (“suspicion” testing).

• The employer should not act on positive results without confirmatory tests.

The Drug-Free Workplace Act of 1988

The Drug-Free Workplace Act of 1988 requires some federal contractors and all federal grantees to agree that they will provide drug-free workplaces as a condition of receiving a contract or grant from a federal agency. The Act does not apply to those who do not have, nor intend to apply for, contracts/grants from the federal government. The Act also does not apply to subcontractors or subgrantees. Although all individuals with federal contracts or grants are covered, requirements vary depending on whether the contractor or grantee is an individual or is an organization.

Since the Act applies to each contract or grant on a case-by-case basis, you will need to determine coverage for each federal contract or grant you have, or for which you are applying. (Information regarding the requirements of the Drug-Free Workplace Act can be found at http://www.dol.gov/elaws/asp/drugfree/screenr.htm.)

If your company has a grant that is covered under the Act and a contract that is not, the Act does not cover the entire company, but rather only employees working on the covered grant. Even though you may not be required to provide a drug-free workplace for all your employees, it’s more cost-effective to do so.

Unionized Workplaces

Drug testing in a union setting is a mandatory subject of collective bargaining. Almost without exception discipline for infractions of drug rules will be subject to the “just cause” provisions of collective bargaining agreements.

Department of Transportation, Federal Motor Carrier Safety Administration’s (FMCSA) Alcohol and Drug Testing Rules

The FMCSA regulations require alcohol and drug testing of drivers, who are required to have a commercial driver’s license (CDL). The DOT rules include procedures for urine drug testing and breath alcohol testing.

The FMCSA rules apply to safety-sensitive employees who operate commercial motor vehicles requiring a CDL. Examples of drivers and employers that are subject to these rules are (the following does not represent a complete listing):

• Anyone who owns or leases commercial motor vehicles

• Anyone who assigns drivers to operate commercial motor vehicles

• Federal, state, and local governments

• For-hire motor carriers

• Private motor carriers

• Civic organizations (Disabled Veteran Transport, Boy/Girl Scouts, and so forth.)

• Churches

Alcohol is a legal substance; therefore, the rules define specific prohibited alcohol-related conduct. Performance of safety-sensitive functions is prohibited:

• While using alcohol

• While having a breath alcohol concentration of 0.04 percent or greater as indicated by an alcohol breath test

• Within four hours after using alcohol

In addition, refusing to submit to an alcohol test or using alcohol within eight hours after an accident or until tested (for drivers required to be tested) are prohibited.

The following alcohol tests are required:

• Post-accident—conducted after accidents on drivers whose performance could have contributed to the accident (as determined by a citation for a moving traffic violation) and for all fatal accidents even if the driver is not cited for a moving traffic violation.

• Reasonable suspicion—conducted when a trained supervisor or company official observes behavior or appearance that is characteristic of alcohol misuse.

• Random—conducted on a random unannounced basis just before, during, or just after performance of safety-sensitive functions.

• Return-to-duty and follow-up—conducted when an individual who has violated the prohibited alcohol conduct standards returns to performing safety-sensitive duties. Follow-up tests are unannounced. At least 6 tests must be conducted in the first 12 months after a driver returns to duty. Follow-up testing may be extended for up to 60 months following return to duty.

Random alcohol testing must be conducted just before, during, or just after a driver’s performance of safety-sensitive duties. The driver is randomly selected for testing from a “pool” of subject drivers. The testing dates and times are unannounced and are reasonably spread throughout the year. Each year, the number of random tests conducted by the employer must equal at least 10 percent of average number of driver positions subject to the regulations.

The rules allow for screening tests to be conducted using saliva devices or breath testing using evidential breath testing (EBT) and non-evidential breath testing devices approved by the National Highway Traffic Safety Administration (NHTSA). NHTSA periodically publishes a list of approved devices in the Federal Register.

Two tests are required to determine if a person has a prohibited alcohol concentration. A screening test is conducted first. Any result less than 0.02 alcohol concentration is considered a “negative” test. If the alcohol concentration is 0.02 or greater, a second confirmation test must be conducted. The driver and the individual conducting the confirmation breath test (called a breath alcohol technician or BAT) complete the alcohol testing form to ensure that the results are properly recorded. The confirmation test, if required, must be conducted using an EBT that prints out the results, date and time, a sequential test number, and the name and serial number of the EBT to ensure the reliability of the results. The confirmation test results determine any actions taken.

Testing procedures that ensure accuracy, reliability and confidentiality of test results are outlined in the Code of Federal Regulations (CFR) Section 49 Part 40 rule. These procedures include training and proficiency requirements for the screening test technicians (STT), breath alcohol technicians (BAT), quality assurance plans for the breath testing devices (including calibration requirements for a suitable test location), and protection of driver test records.

A comprehensive list of the alcohol and drug testing rules published by the FMCSA and the DOT Office of the Secretary (OST) applicable to CDL drivers and their employers is available at www.fmcsa.dot.gov.

Whether or not your organization is in the public or private sector, union or nonunion or some other type of entity, employers should have a written and widely distributed drugs-in-the-workplace policy dealing with pre-employment testing, reasonable suspicion testing, and related issues, to avoid liability and reduce or eliminate an employee’s expectation of privacy.

EMPLOYEE POLYGRAPH PROTECTION ACT OF 1988 (EPPA)

The Employee Polygraph Protection Act of 1988 (EPPA) generally prevents employers from using lie detector tests either for pre-employment screening or during the course of employment, with certain exemptions.

Employers are required to post notices summarizing the protections of the Act in their places of work.

EPPA Exemptions

EPPA excludes federal, state and local governments; and, lie detector tests administered by the federal government to employees of federal contractors engaged in national security intelligence or counterintelligence functions are also exempt.

EPPA also includes limited exemptions where polygraph tests (but no other lie detector tests) may be administered in the private sector. The employer can administer polygraphs as follows:

• To employees who are reasonably suspected of involvement in a workplace incident that results in economic loss to the employer and who had access to the property that is the subject of an investigation.

• To prospective employees of armored car, security alarm, and security guard firms who protect facilities, materials, or operations affecting health or safety, national security, or currency and other like instruments.

• To prospective employees of pharmaceutical and other firms authorized to manufacture, distribute, or dispense controlled substances who will have direct access to such controlled substances, as well as current employee who had access to persons or property that are the subject of an ongoing investigation.

The results of a test alone cannot be disclosed to anyone other than the employer or employee/prospective employee without their consent or, pursuant to court order, to a court, government agency, arbitrator, or mediator.

Where polygraph examinations are permitted they are subject to strict standards concerning the conduct of the test, including the pre-test, testing, and post-test phases of the examination.

MONITORING EMPLOYEES IN THE WORKPLACE

An employer’s ability to monitor employee behavior in the workplace depends upon written and distributed policies that expressly and unambiguously advise the employee not to have any expectation of privacy in the workplace.

Electronic Media

Do you need to monitor employees’ use of electronic media of every nature and type in the workplace? Consider that employees routinely use the internet for non-work-related reasons such as personal email, online personal shopping, employment searches, viewing pornography, personal banking, and other non-work-related activities. They may also use email, text messages, and micro-blogs like Twitter to distribute information that should remain private.

The many forms of electronic media—telephones, mobile communications devices with texting and photographic and video capabilities, social media available to employees while both on- and off- site, on- and off-duty—has created a number of risks for employers. Depending on the nature of your business, employers face some or all of the following risks:

• Liability for words, photos, or videos employees post. Liability can arise from:

• Discriminatory and/or harassing statements.

• Allegations of libel or invasion of privacy.

• Trade libel, such as misstatements or misrepresentations about a competitor.

• Computer system security breaches. For example, employees may post significant amounts of personal information (such as birthdays) on the internet and then use that information as the basis for password or login codes at work.

• Damage to reputation when employees post offensive words, photos, or videos that feature the entity’s name, logos, service marks, or products.

• Liability for copyright or patent infringement.

• Liability for violations of privacy laws, such as HIPAA or ADA.

• Loss of patentability. Under U.S. patent laws, to preserve patentability an organization must apply for a patent within one year of any publication of information related to the item or software it wishes to patent. Under international law, patentability is lost if a patent application isn’t filed before any publication of information related to the item.

• Emails or blog post violating securities laws, such as Sarbanes-Oxley.

• Endangering the organization’s intellectual property, such as trademarks, logos, service marks, customer lists, and/or operating information.

In order to manage the risks associated with employee use of electronic and social media employers must have written policies regarding:

• Employee use of the entity’s electronic media, including email, telephone, and text messaging systems, as well as company sponsored blogs, if any.

• On- or off-duty, on- and off-premise postings to social media sites regarding matters related to the employer.

Because of federal and state law restrictions on the interception of any wire, oral, or electronic communications, it is essential that you, the employer, have written and clear policies dealing with monitoring employees’ communications and activities in the workplace, and that these policies are made well known to all workers.

These policies should specifically cover telephone, electronic, computer, internet, and all other forms of communication as well as dealing with workplace searches, and surveillance, both human and mechanical, of employees.

The Electronic Communications Privacy Act of 1986 (ECPA)

The Electronic Communications Privacy Act (ECPA) prohibits interception of email transmissions by: (a) unauthorized individuals or (b) individuals working for a government entity, acting without a proper warrant.

An employer that illegally monitors or discloses the contents of an employee’s call can be liable for fines and imprisonment; the worker can sue for actual and punitive damages, as well as reasonable attorney fees and other costs of litigation.

The ECPA has two exceptions to the prohibition of interception of electronic communications, namely:

• Where one party consents

• Where the provider of the communications service can monitor communications and the monitoring is done in the ordinary course of business

Email and Internet Monitoring

The ECPA prohibits the intentional interception of “wire, oral, or electronic communications” in transmission. However, employers whose facilities are used to provide electronic communication service may do so “while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the [provider’s] rights or property.” This provision excludes “random monitoring except for mechanical or service quality control checks.” Therefore, unless an employer “just happens” to intercept emails while servicing the facilities over which they are transmitted, interceptions of emails in transmission will not pass muster under the ECPA.

As a result of the potential and likely application of “wire communications” to emails, an employer should obtain consent, either expressly through a signed annual statement or implicitly through notification to employees, that emails may be monitored with a signed annual acknowledgment and/or a daily banner reminder at sign-on.

• Can the employer legally monitor and control employees’ use of social media sites on- and off-premise, on- and off-duty? Yes—if it has a written policy(s) that has been distributed to employees that includes:

• Clear and unambiguous language that:

• Employees should have no expectation of privacy in their use of the employer’s electronic systems of any nature and type.

• The employer has the right to monitor all employee communications and use of the organization’s electronic systems of any nature and type.

• A clear, unambiguous, and customary set of prohibitions regarding personal communications—both on- and off-duty.

• Consent to the policy(s) by employees. A best practice is to have employees sign a document acknowledging and agreeing to the organization’s electronic and social media policies.

Rather than intercept emails in transmission, it is more common for an employer to access emails while in storage. In these situations, the Stored Communications Act (SCA) applies. It prohibits access to stored emails, except for the person or entity providing a wire or electronic communications service. As a result, an employer who provides an email system for its employees may monitor emails without violating the SCA. If emails are transmitted through a third-party service provider, an employer may access emails if it has the employees’ consent.

A computer issue that arises in the context of employee investigations is the monitoring of internet use and the retrieval and perusal of emails sent through the organization’s servers. Such actions may prompt claims of invasion of privacy. In these cases, courts have considered who owns the computer and whether the employer notified the employee that computer use may be monitored and emails and text messages read. This notification should clearly inform the employee that even emails posted through social media sites like Facebook where the sender uses a pass code, if sent through the company’s servers, can (and will if there is an investigation) be retrieved and read.

Listening to Telephone Calls and Voice Messages

An employer may not listen to employees’ telephone conversations unless one of the ECPA exceptions applies.

The first is consent. This requires that one-party consent and monitoring is not for the purpose of committing any criminal or tortuous act.

Consent may be implied where an employer notifies employees that calls will be monitored and employees continue to use the phone system anyway. However, the scope of the consent is limited to the extent of the employer’s monitoring policy. For example, an employer who notifies employees that it will monitor all sales calls may not listen in on personal calls. If a personal call is intercepted in that situation, the employer may listen only long enough to determine the nature of the call.

The other exception allowing an employer to listen to employees’ telephone conversations is the “business use exception.” The interception of wire communications is only prohibited when it is accomplished through the use of an “electronic, mechanical, or other device.” According to the ECPA, an “electronic, mechanical, or other device” is defined as:

any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than - (a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (b) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business.

Therefore, to establish the business use exception, you must prove two elements: (1) “the intercepting equipment must be furnished to the user by the phone company or connected to the phone line, and (2) it must be used in the ordinary course of business.”

Use in the ordinary course of business requires that you have a legitimate business reason for monitoring telephone calls and industry practice may help establish a legitimate business reason. However, the phrase “in the ordinary course of business” cannot be expanded to mean anything that interests a company. It excludes personal calls, except to the extent necessary to determine the nature of the call. This is true even if the subject of the personal call may affect the company or comments related to the employer’s business are interspersed with personal conversation; however, the business use exception does not insulate employees from interception of telephone conversations discussing personal opinions about the workplace.

You should have employees sign an acknowledgement that the employer may access, read, monitor (listen to), intercept, copy, and delete the employee’s communications if the employer deems it appropriate.

Exercise 4-3 Listening In

Instructions: Read the scenario and answer the question.

Scenario: Frank Jones is employed at a test center. His job is to serve as a “deskman” or “test boardman.” As such, he is one of several employees at a “test desk”—a large and complex panel where all trouble reports from customers are received, cleared, dispatched, and closed. Hillary Smith, Frank’s supervisor, monitors the use of test board telephones for service quality checks, checking work in progress, assisting deskmen, and ensuring minimum use of customer monitoring by deskmen. Deskmen, including Jones, know that the test board lines are monitored.

Frank makes personal calls from the test desk, which is a violation of the company’s written policies. Hillary has admonished Frank in the past for making personal calls from the test desk. There are unmonitored telephones near the test desk.

While monitoring the test desk, Hillary listens in for more than 20 minutes while Frank carries on a personal telephone conversation.

Hillary fires Frank. Frank sues.

Question: Who wins, and why?

Solution: If Hillary had determined that Frank’s call was personal and then stopped monitoring, this would be a simple case. Because Frank had no expectation of privacy when using the test desk phone and knowingly violated company rules by using it for personal calls, Hillary’s monitoring was legal and she could fire Frank for his actions. Complicating things, however, is that Hillary did not stop monitoring the call once she determined it was truly personal in nature and continued to listen for an unreasonable length of time. These facts would certainly make it more complicated to a jury. See Simmons v. Southwestern Bell Tel. Co., 452 F. Supp. 392 - Dist. Court, WD Oklahoma 1978; Watkins v. L.M. Berry & Co., 704 F.2d 577 (1983)

Surveillance, Searches, and Other Intrusions

The “expectation of privacy” concept also shows up in the areas of workplace surveillance, searches, and other intrusions.

Surveillance

Basically, an employer can engage in surveillance, undertake searches, etc. if the employee has no expectation of privacy and the action(s) are reasonably related to the workplace or the employer’s business.

Surveillance of union activities can be an unfair labor practice under the National Labor Relations Act (NLRA). Section 7 of the NLRA accords employers the privilege to observe public union activities on company premises, so long as the employer does not take actions that are out of the ordinary.

Some guidance regarding employer surveillance of union activities comes from the National Labor Relations Board’s (NLRB) three-factor test for determining whether employer surveillance activity of potential union members is coercive and therefore in violation of the NLRA. Those factors are:

• The duration of the observation

• The employer’s distance from its employees when observing them

• Whether the employer engaged in other coercive behavior during its observation

A recent important case related to the privacy of union organizers and members is The Guard Publishing Company d/b/a The Register-Guard, 351 NLRB No. 70 (December 16, 2007) where the NLRB determined that an employer may prevent employees from sending union-related communications over work email, so long as such a ban on non-work-related communications is equally applied.

Some states have enacted laws placing restrictions on surveillance. Common are restrictions on the use of any electronic surveillance system in areas designed for the health or personal comfort of employees or for safeguarding their possessions, such as rest rooms, locker rooms, or lounges.

Employers should inform employees that monitoring can occur, through written notice and perhaps with signage, and conduct such activity only for legitimate business purposes.

Searches and Other Intrusions

Basically, an employer can search an employee’s property in order to prevent theft, detect the presence of alcohol or drugs, or recover stolen property if the employee has no expectation of privacy and the action(s) are reasonably related to the workplace or the employer’s business.

In the case of O’Connor v. Ortega, 107 S. Ct. 1492 (1987) the Supreme Court said that for a workplace search to be legitimate it must be (1) “justified at its inception” (something reasonable triggered the search), and (2) “reasonably related in scope to the circumstances” that prompted the search. In other words, it would not be reasonable to search a pencil drawer for a missing desktop computer.

You should expressly inform employees, in writing, that their desks, lockers, and other areas the organization allows them to use are not their personal area or space; they should not expect privacy in such areas or spaces; and that the employer must be provided a copy of any keys or combinations to any locking mechanisms of such areas or spaces.

The employee’s property includes motor vehicles on the employer’s premises. In this regard you should advise workers, in writing, that if they are asked to allow a search of their vehicle and they refuse, they could be subject to disciplinary action up to and including termination.

Regulating Employee Off-Duty, Off-Premise Lifestyle

In the absence of a law prohibiting the employer from disciplining an employee or refusing employment to an applicant for their off-duty, off-premise behaviors, the employer can, in fact, take such action(s). For example, many companies will not hire smokers.

A number of states have passed “lifestyle” laws that fall into three categories, namely:

• Prohibition of Discrimination Based on Off-duty Smoking. This is the most limited form of protection and is the most common.

• Prohibition of Discrimination Based on Off-Duty Use of All Legal Substances. This expands coverage to off-duty, off-premise drinking of alcoholic products, and possibly to people with high cholesterol or other conditions related to diet.

• Prohibition of Discrimination Based on Any Legal Off-Duty Behavior. This is the broadest type of coverage and only exists in a few states, including California, North Dakota, New York, and Colorado.

Courts have been sympathetic to employer policies regulating off-duty, off-premise behaviors when the employer can show that the regulated conduct:

1. Is directly related to the job assigned to the employee

2. Clearly threatens the employer’s business with substantial adverse impact in the absence of the employer’s regulation

Invasion of Privacy

You can reduce employees’ reasonable expectation of privacy by putting employees on notice of restrictions on workplace privacy, possibly through statements in an employee handbook or personnel manual, written notification, or signs posted in the workplace.

Regardless of an employer’s representations, employees often have heightened expectations of privacy as to personal or confidential information.

A treatise on civil wrongs (torts), The Restatement (Second) of Torts, identifies four separate tort causes of action for invasion of privacy, several of which may have application in the workplace:

1. Intrusion upon the plaintiff’s seclusion or solitude

2. Appropriation of the plaintiff’s name or likeness to the defendant’s advantage

3. Publicity that places the plaintiff in a false light in the public’s eye

4. Public disclosure of embarrassing and private facts about the plaintiff

Public Disclosure of Private Facts

Certain intimate details about people, even though true, may be “off limits” to the press and public; examples include publishing detailed information about a private person’s sexual conduct, medical condition, or educational records.

In order to succeed in this kind of lawsuit, the person suing must show that the information was:

• Sufficiently private or not already in the public domain

• Sufficiently intimate

• Highly offensive to a reasonable person

Employers should develop and follow internal procedures that ensure that only persons with a true business related reason have access to employees’ private information, as well as internal controls regarding the disclosure of such information to anyone.

Placing a Person in a False Light

Placing a person in a false light occurs when false allegations about a person are published as fact—either with malice or with reckless disregard for the truth—thereby creating a deliberately false and misleading impression.

Intrusion upon Seclusion

Section 652B of the Restatement of Torts (one of a series of The Restatements of the Law that are highly respected treatises on U.S. legal topics published by the American Law Institute, an organization of legal academics and practitioners) defines intrusion upon seclusion as:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

This tort requires the plaintiff to show that the defendant actually committed an intrusion. To prove actionable intrusion, the plaintiff must show that the defendant penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about the plaintiff—peeped through their window, or broke into their home, car, or purse, for example. An intrusion occurs when the facts show that person intruding believes, or is substantially certain, that he or she lacks the necessary legal or personal permission to commit the intrusive act.

The tort does not require that anything be done with the gained information. Therefore, the tort is complete at the moment of intrusion.

Misappropriation

Appropriation of an employee’s name or likeness, such as in advertising, without the employee’s prior consent may form the basis for a misappropriation claim. Employers should obtain written consent from an employee before using his/her name or likeness (even in company newsletters).

Defamation, Libel, and Slander

In addition of invasion of privacy, an employer must also be wary of liability for defamation. In investigating workplace misconduct, employers must be careful not to draw unwarranted conclusions or make unfounded accusatory statements regarding persons under investigation. Such communications to a third party could constitute “publication” of that information for defamation purposes.

Defamation is a communication which tends to hold the plaintiff up to hatred, contempt, ridicule, or scorn or which causes him to be shunned or avoided; one that tends to injure his reputation as to diminish the esteem, respect, goodwill, or confidence in which he is held.

To prove defamation the plaintiff would have to prove:

• A false and defamatory statement has been made about them.

• Unprivileged publication of the statement to a third party (that is, somebody other than the person defamed by the statement).

• If defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher.

• Damage to the plaintiff.

Defamation may arise in the context of intracompany communications which result in reputational harm, including statements and discharge letters to the employee, office petitions, warning letters, performance evaluations, statements in management or employee meetings, and internal security reports.

Written Versus Oral Defamation

Written defamation is called libel and oral defamation is called slander.

Defamation Defenses

The principal defenses to a defamation action in the employment context are truth, privilege, and opinion.

• Truth (told in a manner not calculated to deceive) is an absolute defense to a defamation action.

• Privilege may exist where the statement was believed by the employer in good faith to be true when uttered, served a legitimate business purpose, and was published to an appropriate individual who also had a legitimate business interest in receiving the communication.

• Opinion is another defense to a charge of defamation where the accused party can show he or she was merely expressing an opinion.

Intentional Infliction of Emotional Distress/Outrage

The tort of intentional infliction of emotional distress has the following elements:

• The defendant must act intentionally or recklessly.

• The defendant’s conduct must be extreme and outrageous.

• The conduct must be the cause of severe emotional distress.

For an employee to win this type of case, he or she will have to prove that the defendant’s conduct was more than malicious and intentional. The conduct must be outrageous.

Liability does not extend to mere insults, indignities, threats, annoyances, or petty oppressions. However, you should not engage in a purposeful effort to inflict emotional harm on an employee, irrespective of what he or she has done.

Exercise 4-4 Truth

Instructions: Read the scenarios and answer the questions.

George is the controller of the Basking Ridge Company. He is a CPA; however, he often fails to follow normally accepted accounting practices. For example, he posts checks that arrive in the mail in payment of invoices to the General ledger, but does not post them to the individual customers’ Accounts Receivable ledgers. Basking Ridge’s computer systems have sent out dunning letters and cut off credit to some of the company’s best customers. They have gone to competitors. Eric, Basking Ridge’s president, fires George for his incompetence. Three weeks later Eric receives a call from the Wilderness Associates Company to whom George has applied for a job.

Scenario 1: Eric says, “Well, y’know, George produced some ‘funny’ numbers. You know what I mean?”

Question: Is this defamation? If not, why not? If so, why?

Scenario 2: Eric says, “Well, y’know, the guy’s a CPA, but he didn’t follow normally accepted accounting practices so I fired him.”

Question: Is this defamation? If not, why not? If so, why?

Solutions: If George was terminated for misapplying funds through negligence, saying so is the truth. Although unflattering, this version of the truth is a defense to a defamation charge. However, saying that the person produced some “funny numbers” makes them sound like a thief and is truth told in a manner calculated to deceive and would not protect the speaker from a defamation charge.

False Imprisonment

False imprisonment occurs when someone intentionally, totally restrains another person without having the legal right to do so.

It’s not necessary that physical force be used—threats or a show of apparent authority are sufficient. False imprisonment in the workplace usually occurs when an overzealous employer investigates allegations of employee wrongdoing and tries to question the employee or coerce a confession. False imprisonment will usually only be actionable if the employer confines an employee physically or by threat of force, although other forms of unreasonable duress may be sufficient.

Generally, an employer has the right to detain an employee for a reasonable time and in a reasonable manner to investigate employee theft. Employee interrogation is a normal part of the employment relationship. Reasonable interrogation or voluntary confinement cannot be regarded as false imprisonment and is not actionable.

Employers should not:

• Physically restrain an employee in order to question him or her

• Lock the door of the room where an investigatory interview is being held

• Place someone at the door to prevent the employee from leaving

To be considered false imprisonment, a person must lack a reasonable means to safely escape the confinement.

In this chapter, you learned that in matters related to privacy in the workplace the employer can avoid liability by ensuring that its supervisors take actions only for legitimate business related purposes and in a reasonable manner.

You learned that the doctrine of respondeat superior (which states that the employer, or “principal,” controls, or has a right to control, the time, place, and method of doing work, controls the employee’s, or the “agent’s” behavior and must then assume some responsibility for the agent’s actions) when drafting and implementing HR policies and procedures. This is critical because when the facts show that an employer-employee (principal-agent) relationship exists, the employer can be held responsible for the injuries caused by the employee in the course of employment.

You also learned that significant differences in corporate objectives and legal consequences govern your approach to the acquisition and dissemination of job applicant and employee information. Generally, background checking is done to verify applicant provided information and to garner information as to an individual’s suitability for the job in question.

We explored how pre-job offer inquiries as to an applicant’s medical history or condition are forbidden, as are considerations of an applicant’s or employee’s family medical history. Medical information related to applicants or employees must be maintained in confidential medical files separate from the individual’s personnel file.

You also learned that the key to an employer’s ability to monitor employee behavior in the workplace is the employee’s reasonable expectation of privacy. If the employer, through written and distributed policies, expressly and unambiguously advises the employee not to have any expectation of privacy in the workplace then, for the most part, the employer can look, listen, read, retrieve, and review whatever the employee is doing and how he or she is doing it.

Review Questions

1. The______________________________ prohibits a consumer reporting agency from furnishing a report containing medical information about a consumer for employment purposes unless the employee has given specific, written consent.

(a) Fair Labor Standards Act of 1938

(b) Fair and Accurate Credit Transactions Act of 2003, Section 411

(c) The Amendments to the Americans with Disabilities Act of 2009

(d) National Labor Relations Act, as amended

1. (b)

2. For a workplace search to be legitimate it must be:

(a) justified at its inception.

(b) consented to by the employee.

(c) limited to the outside of the employee’s desk or locker.

(d) conducted by a licensed investigator or law enforcement officer.

2. (a)

3. The ECPA prohibits_____________________________________.

(a) the intentional retrieval of stored electronic files.

(b) searching public data bases without an applicant’s written consent.

(c) the intentional interception of wire, oral, or electronic communications in transmission.

(d) reading of private employee correspondence that arrives through a fax machine.

3. (c)

4. Libel involves_______________________________________.

(a) the making of defamatory statements in a printed or fixed medium, such as a magazine, newspaper, company newsletter, or email.

(b) the making of defamatory statements by a transitory (non-fixed) representation, usually an oral (spoken) representation.

(c) intruding upon an employee’s seclusion.

(d) making improper verbal statements directly to someone when no one else is around.

4. (a)

5. For the doctrine of respondeat superior to apply:___________________________.

(a) the employee must not be on the employer’s payroll as a W-2 worker.

(b) the employee must not have acted within the scope of his or her employment.

(c) the employer must have the employee’s signed consent.

(d) the employee’s actions must have been foreseeable.

5. (d)