Employee privacy versus employer rights: it's easy to invade employees' privacy, and suffer the legal consequences, if you're not careful. Here's how to be careful

Nursing Homes, Nov, 2003 by Thomas A. Shumaker

Courts have affirmed that employees have a limited right to be protected from unreasonable intrusion into their private affairs. At the same time, the legal requirement that employers maintain a safe, harassment- and drug-free workplace provides a strong incentive to perform some level of employee monitoring. That's why a long-term care facility walks a fine line when it comes to respecting employee privacy: If it delves too far into ah employee's private affairs, it may face an invasion-of-privacy claim. If it is lax, the facility may be hit with a harassment suit based on ah offensive e-mail, or a negligent hiring suit because an employee with faked credentials hurt someone.

A long-term care facility should have a clearly written privacy policy detailing the rights that it reserves for itself under the law. When ah employer communicates that policy to employees and applies it consistently, and employees know exactly what to expect, the likelihood of legal problems declines.

Most employee claims of privacy violation arise in six areas:

* workplace searches

* surveillance

* drug testing

* employment background investigations

* employment physicals and tests

* conversations about employees outside the workplace

Workplace Searches

Employees tend to view their desks, lockers, toolboxes, and workbenches as private spaces. These spaces, however, are generally the property of the employer, who may need to search them if there is a reasonable concern, for example, about a drug problem or theft of company property. To reduce the likelihood of an invasion-of-privacy claim resulting from a workplace search, a long-term care facility should establish and post a broad search policy stating that:

* All furniture and equipment made available to employees in the course of their employment are and remain the property of the facility.

* The facility is not responsible for the loss of or damage to employees' personal property brought into the workplace.

* The facility reserves the right to inspect and search its furniture and equipment, as well as any other object of, if warranted, person in the workplace.

* Employees have no expectation of privacy in relation to the furnishings, equipment, and other objects used in of brought into the workplace.

The policy must also make clear the consequences of refusing to comply with its provisions.

A long-term care facility should conduct a search under such a policy only when necessary, with the written authorization of senior management, and with as much sensitivity to employees' privacy concerns as is reasonable under the circumstances. Employees are less likely to claim a privacy invasion when management has a written policy and a justifiable reason for a search. Employees generally understand the need for such action, particularly if the employer conducts the search in a manner that respects employee dignity.

Surveillance

The courts generally hold employers responsible for providing a workplace that is free of sexual harassment. To reduce their vulnerability to harassment litigation and to promote a productive, professional work environment, employers are increasingly monitoring their employees' use of telephones and e-mail and videotaping their activities on the job.

Wiretapping laws vary from state to state; an employer should review them before conducting any electronic surveillance. Pennsylvania, for example, prohibits the recording of conversations and listening in on employee telephone calls as an invasion of privacy, but allows employers to listen to employee calls to carry out a legitimate business function, e.g., for supervisory purposes.

While employers generally can videotape their worksites and monitor employee e-mail, they must be aware of the legal risks of doing so. For example, using a videotape recorder could constitute illegal wiretapping if the recorder's microphone is on. Similarly, e-mail monitoring imposes confidentiality obligations.

Drugs and Employee Privacy

Long-term care facilities have a legitimate interest in ensuring that employees are drug-free. Here are some guidelines to follow when creating a drug-testing policy:

* A facility is entitled to ask job applicants about current drug use and can require an applicant to take a drug test before it makes a job offer.

* A facility may require an employee to take a drug test if it has a reasonable suspicion that the employee reported to work under the influence of drugs or alcohol. It may also test an employee who is involved in an on-the-job accident.

* Random drug tests are the drug tests that employees are most likely to challenge, e.g., an employee who is discharged for failing, or refusing to take, a random drug test might challenge the discharge in court. Courts permit random drug tests as long as they are administered under a reasonable policy that does not unduly intrude on employee privacy rights.

* Test results must be held in strict confidence.

Drug-testing laws vary from state to state, and a long-term care facility should seek legal counsel in drafting its drug testing policy to ensure compliance with local law. If the workforce is unionized, there is an even greater need for legal advice before implementing a drug-testing policy, to avoid breaching the collective bargaining agreement of violating the Labor Management Relations Act.