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While there are some legal controls on what an employer and prospective employer can find out about you and on how they can use that information, there are still many ways an employer can invade your privacy. But there are also limits to their reach. Generally, employers are entitled to intrude on your personal life but no more than is necessary for legitimate business interests.
Most abuses of privacy rights occur when people are not aware of these legal constraints and how to enforce them. This post covers these rules and outlines some current workplace privacy issues such as access to personnel records, social media, medical examinations, and surveillance during work.
Federal law, the Privacy Act 5 U.S.C. § 552a, restricts the type of information that federal agencies, the military, and other government employers may keep on their workers. However, private employers have nearly free reign when it comes to the type of information they can collect. Although many states now have some type of law regulating personnel files, most of these laws control not the content of the files but regarding the following:
- If and how employees and former employees can get access to their personnel files
- If employees are entitled to copies of the information in them, and
- How employees can contest and fix incorrect information in their files
Employers are supposed to collect only information about you that is job related. And only people with a proven need to know are supposed to have access to your personnel file. For example, your employer cannot tell your coworkers the results of a drug screening test you were required to take. Except the truth is that employers commonly give out information about their employees to other people: other employers, unions, police investigators, creditors, insurance agents.
Job applicants or employees who choose to have some personal information to remain private—address and phone number, for example, if they fear physical violence at the hands of a former spouse—should ask in writing that the information be kept confidential. That request may end up being worth little more than the paper it is written on. But it may also be the best evidence of an employer’s carelessness should complications result later.
Access to Your Own Record
The top way to find out what a company knows about you, or what company representatives are saying about you to outside interests who inquire, is to obtain a copy of the contents of your personnel file from your current or former employer. In some states, the only way you can obtain those files is if they are relevant to a lawsuit you have filed against your employer. And even then, you might be in for a legal battle over what parts of the files must be handed over. However, in various states, you have the right to see the contents of your personnel file—or some of the documents in it—without filing a lawsuit.
State laws on employee access to personnel records generally cover procedural matters, such as when your request must be made, how long the employer must respond, and whether you have the right to dispute information you disagree with. Before you request your file, read the law on procedures for your state.
Social Media Passwords
Employers have looked for new ways to vet job applicants and
make sure they are hiring the right people for the job. One issue is asking job
applicants and employees to hand over the passwords to their personal social
media accounts, such as a Facebook or Twitter account. The first high profile
case happened in 2011, when a correctional officer for the state of Maryland
was asked to provide his password to his personal Facebook account during a
recertification interview with his supervisor. The supervisor scrolled through the
employee’s posts during the interview, looking for anything that might be
improper. After the interview, the employee called the American Civil Liberties
Union, which brought national awareness to the issue and ordered protections
for employee privacy.
The Maryland legislature responded by passing a law that
prohibits employers from asking applicants or employees for passwords to their
personal social media accounts. Many states now have social media password laws
in their books. These laws differ in the details, but they generally ban
employers from asking or requiring applicants or employees to provide login
information to personal social media accounts, to bring up their social media
pages during an interview, to change the privacy settings on their accounts, or
to add someone from the company as a friend or contact. Some states’ laws apply
only to social media profiles, while others apply mostly to all online accounts—including
an email account or retail website account. To learn if your state has such laws,
refer to “States with Social Media Privacy Laws” at the bottom of this page.
Employers may require specific physical and mental
examinations to ensure a qualified workforce. However, there are strict rules on
when those exams can be conducted and who can learn the results. Courts have
ruled that the constitutional right to privacy covers medical information, and
that honesty is the only policy when it extends to medical tests for potential
and existing employees. That is, employers must identify what conditions they
are testing for and get individual consent to perform the test.
Audiotaping and Videotaping
Almost half of the companies responding to an American
Management Association survey reported they use video monitoring to counter
theft, violence, and sabotage. Only 7% use video surveillance to track employees’
on-the-job performance. But nearly all said they notify employees that the cameras
may be rolling beforehand.
But now there’s another turn in the on-the-job taping. As
the number of lawsuits over workplace disputes has grown, so has an alarming
trend: Both employers and employees intent on bolstering their claims have
begun to record one another in the hope of capturing some wrongdoing on tape.
There are a few legal and practical problems with this approach to gathering
evidence, however.
Federal law appears to allow any person involved in a
conversation to tape it without the other person’s knowledge or consent—if the
recording is not made for the purpose of committing a crime, such as extortion.
But several state laws have much stricter controls. Some, for example, require
that everyone involved must consent before a conversation or an action can be
taped.
Although our guts might tell us the opposite, audiotapes and
videotapes also have questionable value as trial evidence. Before any jury
would be allowed to hear or see a tape of a workplace scene, the tape would have
to satisfy many picky rules designed to qualify and disqualify trial evidence.
Dress codes cannot discriminate based on a protected
characteristic, such as race, gender, or religion. Gender-based differences are
allowed, but the dress code may not impose a heavier burden on one gender. For
example, courts have held that an employer cannot require female employees to
wear uniforms if it allows male employees to wear street clothes on the job.
Employers may also need to provide a adjustment to a dress
code as a reasonable accommodation for an employee’s religion or disability.
For example, an employer with a “no hats” policy would likely need to
accommodate an employee who wears a hijab (a head covering worn by some Muslim
women).
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