Walking the Workplace Privacy Tightrope: Seizing Your Rights as an Employer: Without Violating Those of Your Employees

Employers' concerns in today's workplace cannot be limited to production, profits and competition. Prudent employers must accept responsibilities and must also be guardians of employees' rights, one of which is the right to privacy.

Since 1990, the number of employees subjected to electronic surveillance has increased from approximately 8 million to more than 20 million. Privacy Rights Endangered According to ACLU Report, Individual Employment Rights (Bureau of National Affairs, Labor Relations Reporter), September 24, 1996 at 2. One-third of mid-sized and large companies monitor employees' telephone calls, voice mail, computer files and e-mail or videotape employees. Most Large Employers Engage in Monitoring, Survey Says, Individual Employment Rights (Bureau of National Affairs, Labor Relations Reporter), June 3, 1997 at 3. "Overall, 63% engage in one or more monitoring and surveillance practices." Id. Most companies inform employees of the surveillance and monitoring, but it is estimated that 23 percent do not. Id. Additionally, 50 percent of Fortune 500 companies have implemented employee drug testing. Note, Workers, Drinks and Drugs: Can Employers Test? 55 U.Cin. L. Rev. 127 (1986).

There are many reasons why employers monitor the activities of their employees. Employers may be liable for the misconduct of employees. Additionally, theft is a costly and continuing problem. Causes of low productivity may be uncovered by surveillance, open or surreptitious; and prevention of workplace violence may justify employer intrusion on workplace privacy. For these and other reasons, employers are closely monitoring employees. The law of workplace privacy has developed in recent years in response to increased employer surveillance, monitoring and testing. This paper will discuss employees' right to privacy and suggest methods by which employers can protect their legitimate interests without violating these employees' rights.

Stopping Leaks to the Competition: How to Discourage Employee Non-Disclosure of Trade Secrets, Financial Data, Future Plans and Compensation

In the course of their work, some employees become privy to important information about their employer. Trade secrets, customer lists, vendor and financial information, compensation received by management or other employees and future strategy, may qualify as proprietary and therefore confidential.

Agreements ("Covenants") not to compete are one way to attempt to control disclosure of confidential information. Such agreements prohibit the employee from working for a company which competes with the employer or competing directly on his or her own behalf. NRS § 613.200(2)(a).

Covenants not to compete must be reasonable in their scope and duration. Id. In Hansen v. Edwards, 83 Nev. 189, 426 P.2d 792 (1967), the Nevada Supreme court developed a test for use in determining reasonableness. The court held the dispositive issue was whether the covenant imposed upon the employee any greater restraint than was reasonably necessary to protect the business and good will of the employer. Id. The Hansen court stated:

An agreement on the part of an employee not to compete with his employer after termination of the employment is in restraint of trade and will not be enforced in accordance with its terms unless the same are reasonable. Where the public interest is not directly involved, the test usually stated for determining the validity of the covenant as written is whether it imposes upon the employee any greater restraint than is reasonably necessary to protect the business and good will of the employer. A restraint of trade is unreasonable, in the absence of statutory authorization or dominant social or economic justification, if it is greater than is required for the protection of the person for whose benefit the restraint is imposed or imposes undue hardship upon the person restricted. The period of time during which the restraint is to last and the territory that is included are important factors to be considered in determining the reasonableness of the agreement.

Also see Jones v. Deeter, 913 P.2d 1272 (Nev. 1996) (covenant not to compete unenforceable, as five year duration is not reasonably necessary to protect the business and placed too great of hardship on employee); Hansen v. Edwards, 83 Nev. 189, 426 P.2d 792 (1967) (circumstances of the case warranted a reduction of the area of restraint in a noncompetition covenant, from a territory included in a radius of 100 miles of a city to a smaller area confined to the limits of said city).

Covenants not to compete do not provide full protection against disclosure of information. These agreements do not prevent an employee from disclosing confidential information to a non-competing employer or third parties in general. To provide further protection, Nevada has a statute allowing employers to enter into an agreement with employees to prohibit disclosure of trade secrets, customer lists and other confidential information. NRS 613.200(4)(b) states:

The provisions of subsection 1 do not prohibit a person, association, company, corporation, agent or officer from negotiating, executing and enforcing an agreement with an employee of the person, association, company or corporation which, upon termination of the employment, prohibits the employee from:

(b)Disclosing any trade secrets, business methods, lists of customers, secret formulas or processes or confidential information learned or obtained during the course of his employment with the person, association, company or corporation.

The agreement must, again, be reasonable in its scope and duration. Id. The validity of the agreement depends upon the peculiar facts in each case. However, an agreement may be invalid if it goes beyond the limits "necessary to protect the employer's interests and constitutes an unreasonable restraint of trade." 27 Am.Jur.2d Employment Relationships § 225 (citing State Medical Oxygen Supply v. American Medical Oxygen, 240 Mont. 70, 782 P.2d 1272 (1989)).

Even without a non-disclosure agreement, confidential information obtained by an employee during employment by reason of his or her position, cannot be used or disclosed to the detriment of the employer. "An employee is obligated not to reveal employer's confidential information during employment and after termination of employment." 27 Am.Jur.2d Employment Relationship § 224.

At termination of employment, an employee who conceals confidential customer information or removes an employer's books containing customer or other confidential information, is precluded from using the information and is required to return the materials to the employer. 27 Am.Jur.2d Employment Relationship §226 (citing NCH Corp. v. Broyles, 749 F.2d 247 (5th Cir. 1985); Advanced Magnification Instruments, Ltd. v. Minutemen Optical Corp., 522 N.Y.S.2d 287, 135 A.D.2d 889 (3d Dept. 1987); Gonzales v. Zamora, 791 S.W.2d 258 (Tex. App. Corpus Christi 1990)).

An employer, therefore, has some protection against disclosure of confidential information even without having a non-disclosure agreement. "However, an employee can use to his or her own advantage all the skills and knowledge commonly used in the trade that the employee acquired during the employee's tenure of employment." (emphasis added) Id. (citing Service Center of Chicago, Inc. v. Minogue, 180 Ill.App.3d 447, 535 N.E.2d 1132 (1989)).

One significant prerequisite to the viability of non-disclosure of sensitive information is that the information be treated by the employer as proprietary or confidential and that it not be readily available to persons not affiliated with the employer. See 27 Am. Jur. 2d Employment Relationship § 224.

Personnel Files: Who has Access

Employees and former employees often request to see their personnel files. An employee might make such a request to see if the information is correct or current. A former employee might request to discover the stated reason for discharge, to assist an attorney evaluating a wrongful termination suit.

Nevada has a statute concerning access to personnel files. NRS 613.075 provides:

  • That an employee shall have access to their personnel records;
  • An employee has a right to submit an explanation or a rebuttal to information contained in the personnel records, and
  • Upon termination the employee has 60 days to inspect the employee's records.

Other important sections of the statute include allowing an employee the opportunity to see his or her personnel file and furnishing a copy of the file if the employee worked more than 60 days. The employer may charge the employee the cost of providing the copies. A former employee has 60 days from termination of employment with the employer to make the request to see the personnel file.

Not every document in the personnel file must be made available to the employee. The records to be made available do not include "confidential reports from previous employers or investigative agencies or information concerning the investigation, arrest or conviction of that person for a violation of any law." NRS 613.075(1). Other documents to which an employee or former employee should be denied access would be those covered by the attorney-client privilege or work product doctrine, which should never be placed in personnel files.

When Video Recording and Telephone and E-Mail Monitoring are Permissible

Video Surveillance

Employers are increasing the use of video surveillance. Positioning cameras in certain areas of the workplace allows employers to keep constant vigil into the workplace.

However, video surveillance of employees may run afoul of the Electronic Communications Privacy Act ("E.C.P.A.") (18 U.S.C.S. § 2510 et seq.). That federal statute, an amendment to the Omnibus Crime Control and Safe Streets Act of 1968, provides a civil remedy to any person whose wire, oral or electronic communication is intercepted, disclosed, or used in violation of the E.C.P.A., against the person or entity committing that violation. 18 U.S.C.S. § 2520. Wire, oral and electronic communication are broadly defined, but the E.C.P.A. is silent regarding video surveillance.

Courts have determined the E.C.P.A. does not prohibit the use of silent video surveillance. See United States v. Fall, 34 F.3d 674 (9th Cir. 1994); United States v. Biasucci, 786 F.2d 504, 508-09 (2d Cir. 1986); Thompson v. Johnson Cnty Comm. College, 930 F.Supp. 501, 11 I.E.R. 1613 (D. Kan. 1996). Only video surveillance that includes the capability to record conversation violates the Act. Thompson v. Johnson Cnty Comm. College, 930 F.Supp. 501, 11 I.E.R. 1613 (D. Kan. 1996). The video image captured by the surveillance camera is not what violates Title I of the E.C.P.A. "Rather, it is the interception of an oral communication that subjects the interceptor to liability." Id.

Although the E.C.P.A. allows silent video surveillance of employees, privacy protections place certain areas off limits to video surveillance. An employee may have an invasion of privacy claim if there is an intrusion into an area in which there is an "expectation of privacy." Doe v. B.P.S. Guard Services, Inc., 945 F.2d 1422 (8th Cir. 1991). Obvious locations off limits to video surveillance are those where there is an expectation of privacy - dressing rooms and restrooms. Video surveillance, therefore, should be limited to areas where employees are working.

In P.E.T.A. v. Bobby Berosini, 111 Nev. 615, 895 P.2d 1269 (1995), the Nevada Supreme Court held that individuals have less of an expectation of privacy in the workplace than in other areas of their lives. In the Bobby Berosini case, Berosini, an animal trainer and performer in an orangutan act at the Stardust Hotel, was videotaped by a Stardust employee hitting one of the animals backstage before a performance was to begin. Berosini contended he had a reasonable expectation of privacy in the backstage area because he contracted with the Stardust to be free from "distracting intrusion and interference with his animals." Id. at 1281. The court disagreed and held that the videotaping did not interfere with Berosini's handling of his animals. Id. Because there was no interference with the animals, the court held that the videotaping "did not intrude upon Berosini's expected seclusion." Id.

Telephone Monitoring

Many employers have electronic devices to monitor telephone calls placed by or to an employee. The Omnibus Crime Control and Safe Streets Act of 1968 prohibits employers from monitoring the phone calls of their employees. There are, however, two important exceptions.

The first exception is where consent by an employee has been given. 18 U.S.C.S. § 2511 (2)(d). Consent may either be expressed or implied from the circumstances. Deal v. Spears, 980 F.2d 1153 (8th Cir. 1992). However, "knowledge of the capability of monitoring alone cannot be considered implied consent." Watkins v. L.M. Berry & Co., 704 F.2d 577 (8th Cir. 1983). See also Deal v. Spears, 980 F.2d 1153 (8th Cir. 1992) (no consent implied where employer told employee that it "might" monitor phone calls in the future).

The second exception is the business extension exception. 18 U.S.C.S. § 2510(5)(a)(i). Under this exception, employers may monitor telephone calls if two requirements are met: 1) intercepting equipment must be furnished to the user by the phone company or connected to the phone line; and 2) the monitoring of the telephone calls must be made in the ordinary course of business. Watkins v. L.M. Berry & Co., 704 F.2d 577 (8th Cir. 1983).

This exception allows an employer to monitor business calls because they are made in the ordinary course of business. Only an employer "business connection" to the telephone call is required; consent is not needed. Id. An employer, therefore, may ensure quality customer service by monitoring phone calls. However, the ordinary course of business exception prohibits employers from intercepting personal calls. Id. Even if a call is being monitored for business-related reasons, an employer must terminate the monitoring as soon as the employer realizes the call is personal. Id.

Electronic Mail (E-Mail)

E-mail is a fairly recent technological breakthrough. E-mail allows operators of computers to send messages or mail to each other if each computer is equipped with a modem, e-mail software and a service provider. Just as they do with telephone calls, employers have the capacity to monitor e-mail. Backups to e-mail messages are done automatically in most e-mail systems. E-mail, therefore, is almost never deleted. E-Mail and Employment Litigation, Individual Employment Rights (Bureau of National Affairs, Labor Relations Reporter), August 13, 1996 at 4.

Since e-mail is an electronic communication, there are two ways of treating it with regard to employee privacy, depending on whether it is in transit or storage. Absent a clear policy and prior consent, if the e-mail is in transit and, hence, susceptible to interception, the E.C.P.A. would apply to e-mail, and an employer may be liable for monitoring e-mail unless consent was given. If the e-mail is stored, the E.C.P.A. is not applicable and employers are able to monitor e-mail. An employee does not seem to have an "expectation of privacy" argument with regard to e-mail because most computer users realize that "a system administrator could have access to their E-mail." Laurie Thomas Lee, Watch Your E-Mail! Employee E-Mail Monitoring and Privacy Law in the Age of the "Electronic Sweatshop", 28 J. Marshall L. Rev. 139, 148 (1994).

In Steve Jackson Games, Inc. v. U.S. Secret Service, 36 F.3d 457 (5th Cir. 1994), the court defined the difference between the electronic storage and transmission of e-mail. In Steve Jackson Games, Inc., the Secret Service seized unread, private e-mail addressed to plaintiffs. The plaintiffs, inter alia, claimed the E.C.P.A. was violated. The Court held that e-mail is in transit only at the time it is sent by the individual to the electronic communication service. Because the e-mail was in electronic storage as it was already transmitted, the court held the e-mail was not intercepted and, thus, the E.C.P.A. was not violated. Id.

There have only been a few other e-mail cases, one of which was decided by a Nevada court. In Bohach v. City of Reno, 932 F. Supp. 1232, 11 I.E.R. 1707 (D. Nev. 1996), the Reno Police Department read certain police officers' messages sent to video display pagers through the department's computerized message system. The officers argued the Police Department violated the E.C.P.A. by storing, retrieving and reading the electronic messages. According to the court, because the E.C.P.A. does not distinguish between the interception of electronic communication at the time of transmission and retrieval of communication after it has been stored in a computer file, the electronic communication cannot be intercepted when it is in electronic storage. Id. Thus, the court held that the employer police department did not violate the E.C.P.A. by reading the e-mail already transmitted. Id. The court also held that the police officers did not have a reasonable expectation of privacy in the e-mail message system because the officers were notified the messages were logged on a network, certain types of messages were prohibited, the recording and storage of messages occurs through system operation and not through anyone "tapping" and police departments routinely record their communications with the public. Id.

Drug Testing

Privacy concerns are often raised when employees are tested for drugs. The 4th Amendment right to be free from unreasonable searches and seizures protects employees whose rights are violated by governmental action. However, lawsuits challenging governmental testing programs have failed. See National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384 (1989) (drug testing allowed of U.S. Customs Service employees who seek transfer or promotion to positions that involved drug interdiction, required the carrying of firearms or the handling of classified materials); Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 109 S.Ct. 1402 (1989) (employees involved in certain accidents or who violated safety rules may be tested for drugs). Employees of private employers challenge drug testing under the common law tort claim of invasion of privacy or their state constitution, if they live in one of ten states with a constitutional provision that provides for a right to privacy.

There are four basic types of drug testing: pre-employment, reasonable suspicion, post-accident and random testing.

Pre-employment Drug Testing

Pre-employment testing is the most prevalent type. An employer can require job applicants to submit to drug testing before consideration of employment. Koch v. Harrah's Club, 1990 WL 448060, 5 I.E.R. 1295 (Nev. 1990); 27 Am.Jur.2d Employment Relationship § 219 (citing Texas Employment Com. v. Hughes Drill. Fluids, 746 S.W.2d 796, 3 I.E.R. 451 (Tex. Ct. App. 1988)). Employers may condition an offer of employment on passing a drug test because drug testing is not considered to be a medical examination under the Americans with Disabilities Act. Equal Employment Opportunity Commission, Technical Assistance Manual for the Americans with Disabilities Act at VI-2; See Section VI, Part A(1).

Reasonable Suspicion and Post-Accident Drug Testing

Two other types of drug testing are "reasonable suspicion" and post-accident testing. Reasonable suspicion testing occurs when someone trained in the detection of drug use reasonably believes an employee is under the influence of a controlled substance. Post-accident testing occurs as a part of an accident investigation. Drug use does not need to be suspected for this type of drug test. Reasonable suspicion and post-accident testing have been upheld by courts. See Fremont Hotel & Casino v. Esposito, 104 Nev. 394, 760 P.2d 122 (1988) (waitress' refusal to consent to drug testing after reporting for work groggy, disoriented, light-headed and gloss-eyed constituted misconduct); Teamsters v. Transportation Dept., 777 F.Supp. 1493, 6 I.E.R. 647 (9th Cir. 1991) (post-accident drug testing of drivers in safety-sensitive positions is permissible); But see Government Employees, AFGE, Local 2110 v. Derwinski, 777 F.Supp. 1493, 6 I.E.R. 1301 (N.D. Cal. 1991) (post-accident drug testing is unenforceable because of uncertain standards).

Random Drug Testing

The most controversial drug test is random testing. Unannounced employee drug tests are the most likely to "identify those employees who have used drugs illegally." Mark A. de Bernardo, Drug Abuse In the Workplace: An Employer's Guide For Prevention (U.S. Chamber of Commerce) at 42 (1987). "However, unannounced drug tests . . . are the type of employee drug tests most likely to result in employee resentment and legal challenges." Id. Courts have upheld the random testing of employees. In Luck v. Southern Pacific Transport. Co., 218 Cal.App.3d 1, 267 Cal.Rptr. 618 (Cal.App. 1 Dist. 1990), the California Court of Appeals held that an employer must have a "compelling" interest in requiring random drug testing of employees.

According to the court, a compelling interest would exist if the employees work in a safety-sensitive position. Because there was no clear, direct nexus between a computer programmer position and public safety, the court found the employer's interests were not compelling in requiring random testing. Please note that California has a constitutional provision providing for a right to privacy. See also Government Employees, AFGE, Local 2110 v. Derwinski, 777 F.Supp. 1493, 6 I.E.R. 1301 (N.D. Cal. 1991). But see Treasury Employees v. Watkins, 5 I.E.R. 1297 (1989) (proposed random testing of Department of Energy employees was unconstitutional infringement of employee's 4th Amendment rights where safety risks to public were minimal).

Privacy Concerns and Important Employment Statutes

Privacy Traps Hidden in ADA, FMLA and Workers' Compensation

The Americans with Disabilities Act ("ADA"), Family and Medical Leave Act ("FMLA") and workers' compensation laws protect the privacy of employees in certain circumstances. Because these areas of the law concern the health status of employees, confidentiality of medical records is essential in order to protect the employee from having his or her health status known by others. Employers must be aware and comply with these requirements to avoid liability.

Americans with Disabilities Act (ADA)

The ADA protects employees from discrimination based on their disability. The ADA defines an individual with a disability as an individual who: 1) has a physical impairment that substantially limits one or more major life activities; 2) has a record of such impairment; or 3) is regarded as having such an impairment. 42 U.S.C.A. § 12102(2).

The ADA prohibits employers from making any medical inquiry or conducting any medical examination before making a job offer. Equal Employment Opportunity Commission, Technical Assistance Manual for the Americans with Disabilities Act at VI-2. After making a conditional job offer, an employer may require a medical examination, provided the employer requires such examination for all entering employees in a particular job category. Id. at V1-4. However, an employer may not refuse to hire an individual with a disability based on the medical examination results unless the reason for rejection is job-related and justified by business necessity. Id. at VI-2.

The ADA imposes strict limitations on the use of information obtained from medical examinations. "Information from all medical examinations and inquiries must be kept apart from general personnel files as a separate, confidential medical record, available only under limited conditions." Id. at VI-2. Thus, to guarantee the security of medical information, employers must keep information from the medical examination in a separate locked cabinet, apart from the location of personnel files, and designate a specific person(s) to have access to the medical files. Id. at VI-11.

All medical information must be kept confidential, with the following exceptions:

  • Supervisors and managers may be informed about necessary restrictions on the work or duties of an employee and necessary accommodations;
  • First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment or if any specific procedures are needed in the case of fire or other evacuations;
  • Government officials investigating compliance with the ADA and other federal and state laws prohibiting discrimination on the basis of disability or handicap should be provided relevant information on request;
  • Relevant information may be provided to state workers' compensation offices or "second injury" funds, in accordance with state workers' compensation laws;
  • Relevant information may be provided to insurance companies where the company requires a medical examination to provide health or life insurance for employees."

Equal Employment Opportunity Commission, Technical Assistance Manual for the Americans with Disabilities Act at VI-11, 12.

Family Medical Leave Act

The FMLA was enacted in 1993. The FMLA requires employers with 50 or more employees to provide to eligible employees up to 12 weeks per year of unpaid family and medical leave. An eligible employee is an employee who has been employed by his employer for at least 12 months. 29 CFR § 825.110 (a)(1). The FMLA allows eligible employees to take leave for the following reasons: birth, adoption or placement in foster care of a child; the care of a seriously ill child, spouse or parent; or the employee's own serious health condition. Peter A. Susser & David B. Berry, Family and Medical Leave Handbook, § 100 (1996).

In certain circumstances, an employee must provide a copy of a certificate from a physician to justify a medical leave request. 29 CFR 825.305(a). The certification must contain the date on which the condition commenced, the probable duration of the condition and the medical facts regarding the condition. Peter A. Susser & David B. Berry, Family and Medical Leave Handbook, § 530 (1996).

"Records and documents relating to medical certifications, recertifications or medical histories of employees or employees' family members, must be maintained in separate files and be treated as confidential medical records. Id. at 520. The only persons allowed to have access to these confidential medical records are the same as the ADA requires: "1) supervisors and managers who need to be informed of restrictions on the work or duties of an employee and necessary accommodations; 2) first aid and safety personnel if an employee's physical or medical condition might require emergency treatment; and 3) government officials investigating compliance with the FMLA." Peter A. Susser & David B. Berry, Family and Medical Leave Handbook, § 520 (1996); 29 CFR § 825.500(e).

Workers' Compensation

Nevada workers' compensation law also has a confidentiality provision. The employer, again, must not release certain information regarding workers' compensation claimants except in limited situations. The relevant provision of Nevada workers' compensation law states:

"1 . . .[I]nformation obtained from any insurer, employer or employee is confidential and may not be disclosed or be open to public inspection in any manner which would reveal the person's identity." NRS 616B.012.

Employers, therefore, must be careful and cognizant of this statute when releasing information to any party besides the claimant and insurance company.

The Future: Genetic Testing

Science and technology allow tests to be performed on individuals which can indicate whether the individual is susceptible to a genetic disease or disability. For example, whether an individual is susceptible to some forms of cancer can be determined by testing. Genetic testing, therefore, poses risks to employers and employees. See Protection for Genetic Testing Urged, Fair Employment Practices (Bureau of National Affairs), April 7, 1997 at 41.

Ten states (California, Arizona, New York, Iowa, Louisiana, New Hampshire, Rhode Island, Oregon, New Jersey, Wisconsin) have enacted laws banning discrimination on the basis of genetic test results, and the EEOC has issued a guideline on the issue. The federal government passed the Genetic Information Nondiscrimination Act of 2008 to address genetic testing as a basis to employment.

Developing and Using Policies, Procedures, and Documentation to Establish and Protect Employer Rights

Covenants Not To Compete and Non-Disclosure Agreements

If your company employs highly technical and skilled employees, these employees should be required to sign agreements containing covenants not to disclose or compete. Ideally, this requirement should be imposed at the outset, as a condition of employment. After the employment relationship is established, a demand by the employer for such an agreement becomes complex, and the propriety of that demand may depend upon the status of the employee - "at will," or otherwise. If the employment relationship is "at will," the terms and conditions of employment can be changed, and continued employment should satisfy the necessary consideration to support the non-compete and non-disclosure agreements. See Camco, Inc. v. Baker, 936 P.2d 829 (Nev. 1997).

The only effective method to enforce these restrictive agreements is to promptly file suit for an injunction. Such a suit invokes principles of "equity," and can be defeated by unreasonable delay ("laches"), which in these cases can be no more than a few weeks, related improper conduct by the employer ("unclean hands"), or failure to enforce the restrictions against other employees ("waiver-estoppel"). These agreements should be reasonable with regard to duration and geographic limitation.

Additionally, employees with knowledge of or access to confidential information should be required to sign an agreement not to disclose trade secrets or confidential information. Although there is some protection without an agreement, a signed agreement provides a stronger argument for the employer's case if an employee does disclose confidential information to a competitor or attempts to use such information on his or her own behalf and adverse to the employer's interest. If a non-disclosure agreement is not used, there should be a written policy either in a company handbook or provided to each employee.

Video Surveillance

As mentioned in Section IV, Part I, if your company uses video surveillance, the surveillance must not have the capability of recording sound. Only silent video surveillance is permissible. Furthermore, surveillance must not cover areas where employees have an expectation of privacy, such as restrooms and dressing rooms. Employees should be informed of the video surveillance, and where collective bargaining agreements cover employees subject to the surveillance, care must be taken to determine whether surveillance is permitted by those agreements.

Telephone Monitoring

If your company monitors telephone calls, inform the employees of the purpose of the monitoring, ie., the monitoring is for customer service reasons. Either obtain the employees' consent in writing or accept the strict limitation that monitoring is done for business-related purposes only. Your company should have a written policy for telephone monitoring that requires the monitoring to be terminated if it is deemed the call is personal in nature.


Employers should also have a written e-mail policy. According to Allen J. Gross, an attorney specializing in technology and employment law, the policy should indicate that:

  • e-mail is used for business purposes only;
  • information transmitted and stored is the sole property of the employer;
  • the system can't be used to transmit messages of a vulgar nature;
  • the employer has a right to intercept e-mail;
  • the information transmitted is non-confidential;
  • the employee shall not use passwords without authorization and registration.

Focus On...Privacy and New Technologies, Individual Employment Rights (Bureau of National Affairs, Labor Relations Reporter), April 22, 1997 at 4.

Drug Testing

Any employer considering drug testing of employees must exercise great caution. The employer should have a drug testing policy with definite standards. The policy should state the types of drug testing and the disciplinary procedures to follow if an employee tests positive. Any disciplinary measures must be consistently applied.

Employers considering random testing of employees must especially evaluate their circumstances. The employer must analyze "the magnitude of the [drug] problem and the ramifications of such a response." Mark A. de Bernardo, Drug Abuse In the Workplace: An Employer's Guide For Prevention (U.S. Chamber of Commerce) at 43 (1987). The employees to be tested should be in positions where public safety is involved.

Personnel Files and Medical Records

Employees may review the materials contained in their personnel files. Former employees may review their personnel files if the request is made within 60 days of their termination of employment.

It is imperative that employers separate an employee's confidential medical records from his or her personnel file. The confidential medical records should be kept in a separate location and the people having access to the medical records should be limited to the particular employee and the personnel mentioned in Section VI, Part A(I).

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