Nine Employment Privacy Traps and How to Avoid Them

By James R. Macy

Effectively anticipating and preparing for various matters involving employees within your law office can save you substantial time and money. Although some employment issues are straightforward, others can be more complicated or completely foreign to even the most well-read of counsel.

Following is a non-exhaustive list of privacy and confidentiality issues that can arise within an employment setting. As you consider the items below, check to see whether your office manuals or policies—and those of your clients—are current with these issues or even cover them at all.

1. Hiring questions. Federal law and many state laws prohibit making a hiring decision based on protected employment categories such as gender, race, color, creed, and disability. Employment ads, forms, applications, and interview questions are all hiring areas you should review to ensure that inappropriate inquiries about protected categories are not included.

For example, if your employment application requests an applicant’s date of birth, age discrimination may be inferred even if your review of that information has no bearing on your hiring decision. Asking a candidate questions about her or his family during an interview may lead to an inference of preferred marital status or gender discrimination, even if you intended the question simply as a conversational icebreaker. If your employment ad solicits a hardworking, nonsmoking “Girl Friday” able to work overtime and some weekends, candidates may draw conclusions relating to gender, creed, disability discrimination, or discrimination on the basis of use of legal products.

Advice: The reality is that soliciting information directly related to a protected employment category may lead to a lawsuit. What may seem a commonsensical inquiry about law practice may relate to an area of employment discrimination. Review all hiring tools to determine that no protected employment information is requested unless it is essential in some way to the position advertised.

2. Medical information in the hiring process. The Americans with Disabilities Act(ADA), 42 U.S.C. § 12112(a), prohibits a request for certain medical information during the hiring process. Although an applicant may have a disability, asking about it is prohibited. The focus must be on whether the person can do the job applied for, with or without reasonable accommodation, 42 U.S.C. § 12101, not on the applicant’s medical background or handicap.

In addition, the ADA prohibits employment physicals unless the applicant has first been given a conditional offer of employment. After tendering of a conditional offer, the employer may require an employment physical—but it must be limited to determining whether the employee can meet the essential functions of the job with or without reasonable accommodation. Employment physicals or medical examinations under the ADA may include certain psychological tests.

If you perceive an individual to be a drawback to the employment setting owing to the disability, or if you have a generalized concern that the individual might not be successful because of it, disqualifying the individual on that basis alone leaves you with a heavy burden to overcome. For example, a law firm may not disqualify an individual with a history of a mental illness simply by stating that the job stress might cause a relapse of that illness.

Even the post-conditional-offer physical has limits to what you can require. Medical tests, including psychological tests, must be job-related. Although testing for drug and alcohol use is becoming more common in employment hiring, discriminating on the basis of a history of alcoholism is prohibited. Furthermore, specific tests such as those for genetic predispositions or the HIV virus may be completely prohibited.

Advice: Keep your hiring focus on the individual’s qualifications and ability to perform the job, not his or her personal medical history. Do not require an employment physical unless you have first extended a conditional offer of employment. Work closely with your medical provider to keep tests job-related, and do not test for conditions prohibited in your jurisdiction.

3. Medical information after hiring. Once an employee is hired, an employer may have access to certain medical information through situations involving workers’ compensation, other medically related leave, and certain health insurance situations.

An employee’s medical information is always confidential. The ADA requires that it be kept separate from other material generally held in an employee’s personnel file. Commingling confidential medical information with other employee data can render an employer in violation of the law.

Advice: Although confidential medical files are part of the employee’s personnel history, they must be held separately from other HR records, and access to them must be restricted.

4. Employee financial history. Although checking an employment applicant’s credit history may sound like a good idea—especially where garnishment actions result in mandated payroll deductions, for example—certain privacy limitations and federal law may affect both your access to such information and your right to act on it.

The federal Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq.,regulates consumer credit reporting agencies and limits the circumstances in which they may share consumer credit reports. Various state laws also prohibit an employer from making a hiring decision based on an applicant’s credit, except in limited circumstances, or on existing garnishment actions.

Under the FCRA, disclosures regarding credit reports must be made to the job applicants. The disclosures include the employer’s intent to receive such information as well as written authorization to receive such information from the job applicant. If you elect not to hire an individual based on a credit report—if in fact such action is legal in your state—you must inform the applicant of that reason, provide the applicant with a copy of the report, and notify the applicant of his or her rights under the FCRA. If you go on to hire the individual and retain such consumer credit information, you must maintain the confidentiality of the information and take reasonable steps against unauthorized access or use.

Advice: Before requesting certain credit information, determine whether such a request is legal in your state. If it is, consider the necessary requirements of the FCRA. As with legal actions regarding other job-related circumstances, the key to your defense may be the degree to which such issues are related directly to the hiring decision.

5. Employee work space and equipment. Because employers provide employees with desks, lockers, computer equipment, and so on, questions may arise as to an employer’s right to access a desk or locker or search an employee’s computer files in the event a suspect circumstance exists. May you open a locked desk drawer or locker if you suspect the employee of using illegal drugs, misusing another’s prescription medication, or using or being under the influence of alcohol while at work? To what degree can you check an employee’s computer for saved files if you suspect the employee of exchanging pornographic e-mails or surfing pornographic websites? The answer depends on the degree to which the employer has created an expectation of privacy.

If employees are put on notice that the employer continues to be the owner of record for such office equipment, and may need to check the items periodically, the expectation of privacy is certainly minimized and, with proper notice, can be eliminated. To the degree that the employer provides keys, allows employees to use their own padlocks, and lets employees maintain private passwords to their computers, the employer may be creating expectations of privacy.

Advice: Employers should maintain employee policies that eliminate the expectation of privacy. These may include knowing and updating employee access codes and retaining copies of keys or other personal security devices. As businesses become more and more dependent on computers and the Internet, it becomes more and more critical for employers to retain oversight of equipment and other holdings to minimize exposure to employees’ possibly criminal activities.

6. Arrest and conviction record. You read in the morning paper that a key staff member was arrested this past weekend for driving under the influence of alcohol (DUI). You have suspected the individual of having an alcohol problem for some time. Because you believe the article renders the arrest a matter of public record, you decide you should have no problem acting upon the matter because the arrest may be an embarrassment to your office. Think again.

Some states prohibit employers from taking job-related actions based on arrest and/or conviction records unless that arrest or conviction substantially relates to the employment position. Taking action based solely on the arrest would violate the accused’s being “innocent until proven guilty”—unless a substantial tie to work can be established. For example, if a child care worker is arrested for child abuse, the employer could reasonably take action owing to the relationship between the arrest and the employee’s job, which entailed working directly with children.

The fact of arrest and conviction aside, issues relating to alcohol- or drug-induced intoxication while working tie into rules governing the definition of handicap. Although the literal act of drinking alcohol while driving is certainly not protected, alcoholism is a protected handicap. In some states, even the perception that the person may be an alcoholic may be protected.

Advice: When confronted with issues of arrest and conviction record, be careful not to act on emotion; gather facts and make sound personnel decisions.

7. Employment references and personnel inquiries. When applying for positions with your firm, some individuals may request that the employment process be kept confidential. The applicant’s obvious concern is that the application with you may jeopardize his or her standing with a current employer. Honoring an applicant’s request for such confidentiality means you must follow through in all areas, or you may face an employment suit.

In addition, to the degree that an applicant’s references are provided to you in confidence, you must also maintain that confidentiality. If you disqualify an applicant because of a negative reference and then disclose confidential information from that reference to the applicant, you can assume litigation will follow.

For your own sake, when you are asked to provide a reference for a former employee, keep in mind that there are no “off the record” references. Confidential medical information, certain past test records, and credit information must remain confidential. Although some states provide reference shield laws, these laws generally give the employer a qualified immunity against suit for providing a reference made in good faith. Providing false or malicious information could be actionable.

Advice: Avoid giving applicants absolute promises of confidentiality. Although the candidate evaluation process for all job applicants should remain confidential, you must have reasonable ways to check references and backgrounds. Protect confidential information. If you provide references for your past employees, many of the same principles may apply.

8. Reviewing personnel files. Personnel files are not necessarily confidential, and employees have no protected right to review their file. A number of states allow employees to review and copy their personnel files; some states also allow employees to write rebuttals to negative information contained in the file. But such laws often contain a list of items employees may not review: confidential references, test documents, and management planning documents, for example.

Advice: Never assume that employee application records remain confidential. Check your state employment law to learn about accessibility to records, specifically whether employees have the right to review their personnel files and what, if any, materials within the file must be kept elsewhere to maintain confidentiality.

9. Technology and surveillance. Developing technologies and concerns about workplace safety have led to important issues concerning workplace privacy. Although a surveillance camera in a public stairwell may be a welcome security measure, are hidden surveillance cameras that monitor employees’ work performance a good idea for employers?

Many people believe that general use of hidden surveillance methods has crossed a line and may compromise employees’ rights to organize and be represented with the company. If the employees are already organized, hidden surveillance may cross a line maintaining access to certain bargaining obligations. At the same time, there’s little argument that inappropriate surveillance, such as placing cameras in employee bathrooms, directly conflicts with privacy rights.

Covert surveillance may be appropriate when it is used to address a specific problem such as thefts within the workplace. Again, states laws regarding privacy in the workplace may differ, and the specific technologies employers may use for covert operations may be limited by law.

Advice: As you consider the security needs within your office, recognize that you must also factor in employment privacy rights. Maintaining that balance may require you to review and restructure your business policies.

The above list will put you well on the way to avoiding the traps and pitfalls of employment law, leading to happy, productive employees, saving you money, and allowing you more time to enjoy the practice of law. 

James R. Macy practices with the Milwaukee law firm of Davis & Kuelthau, S.C., practicing out of the firm’s Oshkosh, Wisconsin, office. He represents employers in all aspects of labor and employment law and may be reached at jmacy@dkattorneys.com.

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