National Clothesline

Last week, my partners and I were doing a seminar for a company that sponsors employment seminars. An employee of the seminar company (there to hand out materials and check names) interrupted at one point to insist there was a federal law establishing privacy rights for employees.

Federal and state labor law has evolved quite a bit in the last 80 years, but employees have very few privacy rights in the workplace. In the “search and seizure” area, employee lockers, desks, vehicles, and handbags can be searched to determine if they are carrying stolen items or drugs. Employees in most states can be videotaped and tape recorded, though in some states they must be told ahead of time that they will be.

Then again, searches of employees should not be conducted in full view of other employees, unless all employees are being subjected to the same search. Some courts have found individual public searches to be defamatory, though otherwise permissible if handled with some discretion. And with respect to videotaping, some locations — like the bathroom — may give rise to state law claims for intentional infliction of emotional distress.

Under the Americans with Disabilities Act, employees are not to be asked about physical or mental conditions until they are offered a job. After that, employees can be required to disclose those conditions to allow the employer to determine if they are disabled and need reasonable accommodation to do the job they are being offered. So, under the ADA, the privacy right extends to applicants, not individuals who have been offered work.

In some states, employers are not permitted to disclose medical conditions involving their employees, such as positives tests for HIV. In most states, however, disclosure of these conditions as part of an educational exercise is permitted.

Not too long ago, the federal government adopted laws against disclosure of medical conditions by health care providers, which — contrary to popular belief — does not apply to employers. While it may not be a wise idea to disclose medical conditions to other employees, for the most part, it is perfectly fine to tell employees that “John will be out for a few months because of heart bypass surgery.”

Then again, if John is out for surgery to become Jane, disclosure could be a problem in a state that protects transsexuals. But if the purpose of disclosure was to educate employees to the anti-discrimination provisions of state law, and to insure Jane’s transition back to full employment, it might be permissible.

There are plenty of federal and state restrictions against lie detector tests. Even before the federal law, some states allowed tests, but restricted what kind of questions could be asked. For example, in Virginia, an employer could not ask questions about sexual history.

In this Internet age, employers may monitor computer use by its employees. Bills have been introduced in some legislatures to require notice to employees, but most employers would be wise to let employees know anyway. Remember, if you are going to enforce a “no porno” restriction, it should apply to all employees. Make sure your managers know that they should not participate in Internet smut.

Until there is a federal privacy act, use common sense to determine whether you want to invade an employee’s privacy. Here are some simple rules.

1. Tell employees if they are going to be under surveillance or recorded.

2. Searching vehicles, desks, lockers, personal possessions, etc. is fine; searching employees with pat downs or physical contact carries some risk.

3. Medical questions before hire should not be asked.

4. Disclosure of medical conditions should be for valid business reasons, not idle gossip.

5. Forget lie detector tests.

6. Drug testing is legal, for the most part. Check to make sure you are complying with state law if you are employing drug tests.

7. If you have questions, seek legal advice.