Privacy in the Workplace

You would think that employee privacy rights only apply to employees that you currently have but it really begins with the hiring process. Companies can reduce the number of labor related incidents during the first step of recruiting by setting up a cost-effective, yet reliable drug testing system. According to Kevin Troutman (2005), “People who abuse drugs are a hazard to companies because they miss work, file more workers’ compensation claims, make errors, steal and create safety concerns for other employees”. An employer needs to use caution when setting up their system by making sure they are following their state’s regulations and using a licensed third party facility to review the results. Unfortunately, a large percentage of employers abstain from this step because they fear that it will greatly reduce their pool of applicants but it could cost them more in the end.

Recent national studies report only half of employers test their employees for drugs, while three-fourths of the drug users in America are actively employed. According to a study by the Substance Abuse and Mental Health Services Administration of Rockville, Maryland, substance abuse costs the employer an average of $19,000 per person in lost production, workers’ compensation and medical coverage (Dolan Media Newswires, 2005).

Another problem companies face when interviewing prospective employees is that reference checks are not always an effective way to learn about the candidate. There is no specific statutory or common law right to keep an employment history private or confidential but many employers fear that if they provide negative information about a past worker he or she may sue them for defamation. Even if the employer is in the right with the law, companies want to avoid the cost and time consumption of litigation. Due to this fear, some employers may only provide dates of employment and the positions held. So what is an employer to do? A few options include using credit and criminal checks instead, having the candidate fill out a more detailed application, asking the candidate to provide past evaluations, or calling coworkers who will most likely not be familiar of the laws and therefore more willing to provide useful information (Dolan Media Newswires, 2005).

The next thing to consider for protecting your business from litigation is to keep employees medical and disability records in a safe and confidential location. Highly sensitive records are protected by multiple federal regulations. The American’s with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA) require that medical records be filed separately from other personnel records. ALL employers have some responsibility to be compliant with the Health Insurance Portability and Accountability Act of 1996 (HIPAA). “HIPAA covers the uses and disclosure of protected health information (PHI), individuals’ rights regarding PHI, and special rules for plan sponsors, employers, and service providers to plans. Your requirements vary depending on the type of health insurance policy you carry. To see what is required by your company, visit www.hhs.gov/ocr/hipaa. As a general rule, medical related problems cannot be used to fire or discipline an employee. Records should only be viewed by employees that have been educated about the laws and regulations that apply and only for the purpose of insurance processing claims (Hallinan, 2004).

Video surveillance is a sure way to provide a safe, well monitored work environment but employers must be careful not to cross the line. To avoid liability security personnel should always use the least intrusive technology available first. A ruling in Anderson et al v. Monongahela Power Company and the Allegheny Power System Inc., a case between Monongahela Power Co. and its employees involving the installation of hidden video cameras in lockers, bathrooms and showers, implied that the use of a disguised surveillance of employees cannot be based solely on an employer’s suspicions. The company lost the suit and as a result put into effect a permanent injunction in October, 1994, that barred the use of video surveillance cameras in locker rooms, showers, bathrooms and other places considered to be highly private. (Groussman, 1995). Observing a person in a public place is a different story because the observation is not considered to be an intrusion on seclusion (Canoni, 2004). However, once the person enters on to his or her private property surveillance is considered to be an invasion of privacy. No federal law currently prohibits employers to use location awareness technology, but some states have privacy laws that offer protection to the employee.

Global Positioning System (GPS), originally developed by the military in 1978, uses a network of 24 orbiting satellites to pinpoint the location of a vehicle or person within 15 feet. This technology is taking the world by storm.