Employment Privacy Laws Nandhakumar KathiresshanMBA535: Legal Environment for ManagersInstructor: Thomas Hanson12/14/2017?Employment Privacy Laws IntroductionEmployment privacy law has been facing a legal issue for a very long time because of record keeping, disclosure, and privacy-related statutes along with their accompanying case law. This law establishes new or revised privacy requirements that force employers to constantly review personnel forms, policies, and practices. These employment privacy laws are complicated and confusing at the same time. In part of the law, it will ask the employers to ensure employees confidentiality. In another part of law, it will ask the employers to disclose employee information. Many employers collect, maintain, and use vast quantities of data about their employees which the unions, the government, and others frequently attempt to access. Unaccustomed to outside scrutiny, many employers are surprised to learn that they must disclose certain information to these groups as well as to their own employees. This law has no clear defined boundaries. It just encompasses some of the employment statues and case law. As a field, it developed as part of specialized employment law areas involving record-keeping and disclosure, labor relations, health and safety, labor standards, and fair employment practices. In 1980’s, the at-will employment was a major issue for many of the companies. Just like that the employment privacy law became a threat to most of the companies in 1990’s. In this paper, we will be discussing about the issues related to the employment privacy law such as the privacy’s setting, privacy’s significance, and finally, the major areas of concern.Privacy Setting – Employment LawThis employment law, as mentioned in the introduction, it is a complicated law with a combination of common law doctrines, statutes, contractual rules, judicial pronouncements, and administrative agency findings. With all these statues and rules within this single privacy law, makes it even more unpredictable. In fact, even within a narrow employment issue, the law can vary considerably depending upon whether an administrative agency or a court is involved.1 Statutes and court decisions reflect the conflict between the employee and the employer,2 and make employment law3 such a hot political issue. Employment law provides a mechanism for dealing with conflicts involving not only wages, hours, and employment conditions, but also power contests within and between various groups and personalities. Such contests may include confrontations between employees, union officials, and employers. The National Labor Relations Act (NLRA) protects employee rights by providing for full freedom of association, self-organization, and designation of representatives for negotiating the terms and conditions of employment or other mutual aid or protection. Thus, the Act statutorily restrains and defuses potential conflict between employee, union, and employer by transforming physical violence and economic coercion into collective bargaining.Privacy Law – The Employment RelationshipEconomy plays a vital role in the employer and employee relationship since that is the major part of everyone’s life. In this world, almost every individual who goes to work is having a dependent either directly or indirectly and everyone depends on their daily income to meet their ends. In this scenario, if a job is lost, it will create lots of chaos and confusions and it will make their life miserable and not suitable for living. Hence this employer – employee relation became very important and it has become the fundamental part of this fast-growing world. This relationship stands next to the marriage relationship which requires duties and affairs that needs to be done daily to keep the relationship going. Also, this relationship is a very complicated relationship because of its different faces which includes human resource functions, wage and benefit programs, and government regulation. In this case, generating lots of documents and records are involved which might cause distress among the employee – employer relationship. Once the employee enters the employment relationship, he/she has little or no choice over whether to provide sensitive and often detailed information. This information reveals the activities, interests and employee’s innermost beliefs and there is a high chances that this information might fall into the hands of co-workers not privileged to receive it. As a result, the information may cause co-workers to form incorrect and unfavorable opinions of the employee which may affect his standing and reputation inside and outside the workplace. Further, the employee may experience restricted opportunities to develop and maintain political, economic, and social relationships.Privacy Law – In The PastSince past, the ability of an employee to challenge the behavior or practices of the employer is limited. They do not have a good stand on saying any opinion about the unfair, intrusive or damaging nature of the employer even if that is what happens. The employment relationship generally “denies any right to the employee who is arbitrarily treated without a union or a contract.” Based on the contractual restriction or statutory, the employment relationship can be terminated at any time and for any reason either it may be good reason, bad reason or no reason at all. This kind of relationship is call the at-will relationship. Congress and various state legislatures have prohibited the summary termination of an at-will employee in certain instances. This at-will relationship has not only been approved by the congress, it has also been approved by the court which says that an employer may terminate an employee for any reason unless expressly not allowed by statute. The primary federal statutes limiting an employer’s right to terminate an at-will employee are the NLRA16 and certain sections of the Civil Rights Act of 1964 (Title VII). The NLRA provides that an employer may not terminate an employee where the employee was exercising the right to organize and select an employee representative. Title VII prohibits termination based upon discrimination involving race, color, religion, sex, or national origin. In addition, several federal statutes contain provisions which directly or’ indirectly restrict employee terminations including the Age Discrimination in Employment Act of 1967, the Occupational Safety and Health Act of 1970 (OSHA), the Vietnam Era Veterans’ Readjustment Assistance Act, the Fair Labor Standards Act, the Rehabilitation Act of 1973, the Employee Retirement Income Security Act of 1974, the Energy Reorganizations Act of 1974, the Clean Air Act, the Federal Water Pollution Control Act, the Federal Railroad Safety Authorization Act, the Consumer Credit Protection Act, and the Jury System Improvements Act of 1978.Privacy Law – Current ScenarioConcerns about the privacy rights of employees have arisen as employers have purportedly used invasive tactics to monitor and screen workers. Perhaps the greatest privacy concern in employment today involves electronic monitoring of employees’ activities. More than half of employers engage in some form of electronic monitoring of their employees. Many employers review employees’ e-mail, as well as their social media posts and other Internet messages. Employers may also make video recordings of their employees at work, record their telephone conversations, and listen to their voice mail. In addition to monitoring their employees’ online activities, employers also engage in other types of employee screening and monitoring. The practices discussed next have often been challenged as violations of employee privacy rights. Lie-Detector Tests and Drug Testing are the most popular practices that has been considered against the employment privacy law.For example, let us look at a business case problem of Li Li v. Canberra Industries, 134 Conn.App. 448, 39 A.3d 789 (2012) which is based on an issue based on employment at-will. In this case, Li Li worked for Packard Bioscience, and Mark Schmeizl was her supervisor. In March 2000, Schmeizl told Li to call Packard’s competitors, pretend to be a potential customer, and request “pricing information and literature.” Li refused to perform the assignment. She told Schmeizl that she thought the work was illegal and recommended that he contact Packard’s legal department. Although a lawyer recommended against the practice, Schmeizl insisted that Li perform the calls. Moreover, he later wrote negative performance reviews because she was unable to get the requested information when she called competitors and identi¬ed herself as a Packard employee. On June 1, 2000, Li was terminated on Schmeizl’s recommendation. Can Li bring a claim for wrongful discharge? Why or why not?It is not enough for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court. The employer will always win a case like this, because how does Li prove she was not terminated for poor performance. This case was won by the defendant due to Li not proving that her reason for termination was due to not following the request by Schmeizl. Schmeizl had a lot more evidence of her poor performance though, not just refusing to call competitors. In this case, the court initially made a judgement in favor of Schmeizl. But Li argued that the court erred in granting the defendants’ motion for summary judgment as to count six because a genuine issue of material fact exists as to the cause of her termination. In granting the defendants’ motion for summary judgment as to count six, the court reasoned that no genuine issue of material fact existed as to the reason for the plaintiff’s discharge and that the plaintiff’s “unsupported factual assertions are insufficient to demonstrate that she was discharged on any other basis, including her criticisms of her coworkers and her supervisors.” The court determined that the plaintiff was unable to state a cause of action under § 31–51q because “she is unable to prove the causal connection between her exercise of her free speech right and her discharge.” The court then concluded saying that the court erred in granting the defendants’ motion for summary judgment as to count six. The judgment was reversed only as to counts one and six of the revised complaint alleging wrongful discharge and the case was remanded for further proceedings according to law; the judgment was then affirmed in all other respects.Employment privacy are also concerned further about the personal information that the employers collect which are not related to the job they are working in. The employer has all rights and concerns to know and inquire about an employee’s previous work history, temperament, behavior and abilities. But, sometimes the employers go beyond that and collect more unwanted information and they will try to get to know everything about the employee which is not good for a healthy employer – employee relationship. Some of the unwanted information about the employee lingers in the employer’s mind and will affect the employee when writing a review about the employee performance. The employer thinks that it is relevant and necessary in determining suitability for employment. Thus, the employer feels it is important to know if the employee smokes marijuana at home, is a homosexual, or socializes with the “wrong” kind of people. Other privacy concerns are raised when a former employer discloses information to a prospective employer about the hiring of a potential employee. For example, the former employer may disclose an employee’s confidential medical records to someone who has no legitimate need to view them, or embarrassing personal facts about an employee out of spite or revenge. This may subject the employee to ridicule from friends and acquaintances and even injure his reputation and limit future employment prospects. Hardly surprising, legislatures and courts are increasingly concerned about employment privacy. While employers may have legitimate business interests that sometimes require infringing on employee privacy, there are compelling reasons to limit this intrusion where no legitimate interest exists.Hence defining privacy law is very important before we make any recommendation for adjustment of the current law. This employment privacy covers a vast area of employer and employee interests. It relates starting from fair and intrusive data collection of an employee by an employer, maintaining, using, and disclosing information till the responsibility of regulating the work life balance for the employee by the employer. All the above-mentioned interests should occur before, during and after termination of an employee from a job which will provide a health employer – employee relationship. The employee privacy interest lies in the private life, believes, conversations, property, family and funds. They are also present whenever irrelevant, inaccurate, or incomplete facts are used to make employment decisions, or when employment information is disclosed to third parties. These interests may be summarized into the five main employment privacy themes: speech, beliefs, information, association, and lifestyle. The problem of invading these privacy interests impacts every aspect of employment from hiring, to life inside and outside the workplace.Employees usually find themselves comfortable disclosing all their personal issues and everyday activities to a close friend without inhibition but not to the employer who will be responsible for your reviews, hiring, bonus and job security. An important difference between employees’ relationships with family and friends and their relationship with employers, is that employers treat them as continuing performance evaluation objects.Within the employment relationship there are two basic privacies. One is the information privacy and the other one is the behavior privacy. With respect to the information privacy, collection, use and disclosure of the employment information comes in whereas with the behavior privacy, surveillance of the employee both inside and outside the employment/workplace comes in. “Privacy” and “confidentiality” are similar, yet distinct, concepts. Employment “information privacy” concerns what employee information should be collected, how much should be maintained, and what should be disclosed. “Confidentiality” is concerned with restricting the unauthorized use or disclosure of employment information through procedures that ensure such security. Confidentiality requires security controls in oral and written communications as well as in manual and computerized records. Unwarranted appropriation of one’s personality, publication of one’s private affairs, or the wrongful intrusion into one’s personal activities to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities creates an employment privacy breach. If an employee suffers an adverse effect from a breach of privacy or confidentiality, a remedy should be provided.Privacy Law – In The Future & ConclusionIt is evident that the examination of employment privacy interests is going to happen in the future as well when it comes to hiring reliable employees for the company. This collection, maintaining and disclosure of employee’s everyday information will be a great issue even in the future without any question. The only way to avoid or minimize this chaos and confusion is to have the “Voluntary employer compliance” where the employee’s information such as veteran status, disability information, race, origin, health information, etc., all can be disclosed to the employer with the voluntary consign form. Statutory regulation at the federal and state level will increasingly prove to be the most substantive means to confront this. Hence this employment privacy law needs to be studied thoroughly to get a good solution for the future. Otherwise there will be tons of business related case problems will pile up in the judicial system. Employers should also look into the employer liability in the future to avoid any costly reimbursements or compensation for the employees for breaking the employee privacy law.