Employer's Use Of Information example essay topic

In recent years, an increasing amount of attention has been paid to a body of law protecting an employee's "right of privacy". Common law privacy rights, unlike the constitutional right to be free from unreasonable government searches and seizures, provide a remedy for the acts of private persons. (web). Nowhere in the United States Constitution will you find the word "privacy". The U.S. Supreme Court has nevertheless repeatedly declared that the Bill of Rights implicitly forbids governmental intrusion upon various "Zones of Privacy".

Examples include the First Amendment right of association, the Third Amendment prohibition against the quartering of soldiers in any house in time of peace without the owner's consent, the Fourth Amendment right against unreasonable searches and seizures, and the Fifth Amendment protection against self-incrimination. (web archive / federalist /story-privacy. html). The Supreme Court recognized the right to privacy in the 1965 Griswold vs. Connecticut decision. In this case, Estelle Griswold, the head of the Planned Parenthood League of Connecticut, challenged Connecticut law, which forbade married couples from using contraceptives. The case reached the Supreme Court, which found a "zone of privacy" to be implicit in the Constitution. In permitting governmental interference with the intimacy of marriage, the Connecticut law violated that zone. (Griswold vs. Connecticut).

The strongest protection in the area of privacy arises from the Fourth Amendment, which safeguards American citizens, and their places, papers, and effects, from unreasonable searches and seizures. The Fourth Amendment sets limits on government intrusion into people's private lives. In 1987, the U.S. Supreme Court was asked for the first time to decide on whether or not the Fourth Amendment protects a public employee from work place searches. In O'Connor vs. Ortega, the Court ruled that a state employee did have a reasonable expectation of privacy in his desk, file cabinets, and office, but that the state was still entitled to make reasonable intrusions into those zones of privacy by virtue of its status as his employer.

(O'Connor vs. Ortega). Private employers are not restricted by the Fourth Amendment's limits against unreasonable searches and seizures. Employers can defeat employees's ubjective privacy expectations by announced policies establishing search rights and by conducting searches in a reasonable manner. Employee privacy expectations are reduced where published employer policies notify employees that their offices, desks, purses, file cabinets, etc. are all subject to inspection and search by the employer. When an employer intends to search personal effects, such as purses or wallets, employees she be forewarned and consent should be obtained before the search. (Bennett-Alexander and Pincus, 1998).

The federal government compiles a wide range of information on individuals. For example, if you were ever in the military or employed by a federal agency, there should be records of your service. If you have ever applied for a federal grant or received a student loan guaranteed by the government, you are probably the subject of a file. There are records on every individual who has ever paid income taxes. The Privacy Act, passed by Congress in 1974, establishes certain controls over what personal information the federal government collects and how it is used. Specifically, the Act mandates that the Government: (1) Inform people at the time it is collecting information about them, why this information is being collected and how it will be used.

(2) Ensure that the information being collected and maintained is accurate, relevant, complete and up-to-date before disclosing it to others. (3) Allow individuals access to records on themselves. (4) Provide individuals with the opportunity to correct inaccuracies in their records. (5) Allow individuals to find out about disclosures of their records to other agencies or persons, and (6) Publish a notice in the Federal Register of new or revised systems of records on individuals. (web) As it has developed over the years, "privacy" law has attempted to balance two basic interests: (1) The employers' interests in minimizing losses and injuries and in maximizing production; and (2) The employees' interests in being free from intrusion into their private affairs. Neither of these interests is necessarily paramount over the other, and the law makes different accommodations depending upon the circumstances involved. There are four types of recognized "privacy" torts: (1) Appropriation; (2) Intrusion; (3) Public disclosure of private facts; and (4) False light. (web).

The following is a brief definition of each of these types of common law privacy claims: (1) Appropriation involves the use of someone's name or likeness for a commercial or economic benefit. Claims for appropriation in the employment context often arise from cases in which employers represent in some fashion that former employees are still in their employ, in an effort to retain clients or customers served by the former employee. To avoid claims of appropriation, employers should secure releases from employees whose names or likeness will be used in promotion materials or other forms of advertising. (2) A claim for intrusion arises when an employer intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, if the intrusion would be highly offensive to a reasonable person. Some examples of this intrusion would be searches, surveillance, interviews and integrity tests.

To avoid claims of intrusion, employers should implement their practices in a manner that is sensitive to the reasonable concerns of employees and applicants. (3) Public disclosure of private facts consists of giving publicity to a matter concerning the private life of another if the matter publicized is of a kind that (1) would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public. This tort often involves an employer's use of information gathered about the employee or applicant during the application, screening, orientation or medical examination process and maintained in personnel or other files. To avoid claims of public disclosure of private facts, employers should be cautious about discussing information about employees with anyone other than an individual who has a legitimate need to know.

Restricting access to files and to information about employees will minimize the risk that "private" information will fall into the wrong hands. (4) False light consists of publicly characterizing or placing a person in a false light where false light would be highly offensive to a reasonable person and where the one who publicizes the information knew or acted with reckless disregard to the falsity of the publicized matter. Cases involving false light usually involve defamation claims we well. An employer may defend against claims of false light or defamation by establishing the truth of the information communicated. With the increase of electronic communications in the workplace, most employers now can monitor their employees through a variety of tools. Employers who monitor their employees cite a variety of business-related reasons for surveillance, including: (1) keeping accurate records of employee productivity and performance; (2) preventing theft; (3) preventing disclosure of confidential information or intellectual property; (4) ensuring company property is used for company purposes; and (5) determining whether injury and disability claims are valid.

Whatever the reason for monitoring, employers who wish to steer clear of legal consequences need to be aware of employee privacy issues in the electronic age. Employer monitoring of employee phone calls is subject to the Omnibus Crime Control and Safe Streets Act of 1968, or the Federal Wire Tap Act. This statute prohibits the willful interception, use, or disclosure of any wire, oral or electronic communication. There are exceptions to the Act, and one of them is monitoring employee's use of business telephones if there is a legitimate reason to do so. With the increased use of electronic mail, many employers now monitor e-mail to protect their companies from improper conduct by employees.

Under the Electronic Communications Privacy Act (ECP A), employers may monitor employee communications via computer as long as there is prior consent. (web) In conclusion, the law protecting employees' rights to privacy affects an employer's right to control the workplace. To minimize the risk of infringing upon employee's rights, the following points should be observed: (1) Employers should notify employees about policies authorizing searches or surveillance so that any expectations of privacy will be diminished. (2) In seeking information from or about an individual, an employer should attempt to restrict the inquiry to matters having a bearing upon the suitability or ability of the individual to do the job. (3) Whenever sensitive information is obtained, employers should assure that the information is made available only to employees who have a need to know the information in order to perform their duties and who have been expressly required to maintain the information in confidence. (4) Employers should exercise great caution in releasing any "Private" information absent either authorization from the employee or a legitimate and substantial reason for making the disclosure. (web)

Bibliography

Bennett-Alexander, D.D., & Pincus, L.B. (1998).
Employment Law for Business (2nd ed. ). Chicago: Irwin. Griswold vs. Connecticut, 381 U.S. 479, (1965) Right to Privacy in the Workplace in the Information Age.
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Ortega, 107 S. Ct. 1492 (1987).