Checking up on workers - business and employee privacy

Nation's Business, Dec, 1990 by Jane Easter Bahls

When is regulating lifestyles intrusive? When the behavior in question has no real bearing on the job, say both Decker and Trubow. For instance, Trubow says, if a drug test on a Tuesday picks up traces of marijuana usage from the past weekend but job performance hasn't suffered, the employer may be overstepping the bounds by interfering. If the employee is responsible for the safety of others, however, the employer can take immediate action.

The nature of some jobs might justify regulation of employee lifestyles. Workers on call to provide emergency services involving the health and safety of customers can be required to meet standards that deal with their ability to function effectively if summoned to work. The key is to develop a clear policy and communicate it to the employees, Trubow says. "It's the surprises, sneakiness, and overreaching the interests of the employer that lead to privacy claims," he says.

While employers can face litigation over the use of personnel information, they also risk lawsuits when they refuse to divulge it. A union or other third party might want such data as the basis for a complaint of racial discrimination. An employer who refuses to cooperate on the ground of privacy might have to defend that refusal in court.

"The question is balancing how much the third parties need the information to prove their case, compared to how intrusive the violation of privacy is," says Prof. Perritt of Villanova University. If the information in question consists of medical records or psychological-test results, releasing it to a third party is a greater intrusion on privacy than merely releasing salary figures. "It's a difficult problem for employers," he says.

Here are guidelines to help you guard employees' privacy while fulfilling your need for information:

* Make sure any intrusions into the employee's private life are job-related. "Don't involve yourself in stuff that's none of your business," says Perritt. Whether you're seeking personal information on a job application or requiring a particular manner of dress, restrict your requests to matters that truly affect job performance, public relations, and other business matters--and be able to defend your decision in court.

* Provide fair notice. If you're going to install a surveillance camera, or phase out smoking in the office, or begin testing randomly for drug use, inform your employees. They're not likely to turn in their resignations en masse, and you'll avoid triggering the surprise and outrage that often underlie employees' privacy claims.

* Before placing information in an employee's file, make sure that it is accurate, complete, and relevant.

* Avoid promises of confidentiality, and make sure you keep any such promises that you do make. If you tell employees that you'll use their medical records only for health-insurance purposes, don't start using the records to screen candidates for promotion. Make a good-faith effort to abide by your employees' reasonable expectations of privacy and confidentiality.