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Workplace Privacy Laws

14. What “worker privacy laws” apply to the workplace?

Two primary federal acts provide for rights of privacy of employees with regard to their personal communications.

•    Electronic Communication Privacy Act (ECPA) – The ECPA prohibits the recording or monitoring of employee’s private conversations without the employee’s knowledge. That is, an employee has an expectation of privacy with regard to her personal communications in the workplace. As such, an employer cannot infringe upon an employee’s privacy by monitoring those communications. There are, however, several glaring exceptions to this rule.

⁃    Business Equipment – An employee has no right to privacy when employing the employer’s equipment to communicate.

⁃    Example: An employer can monitor employee communications, such as emails, chat logs, search history, etc., if done on a business computer, phone, copier, etc.

⁃    Security – An employer may undertake reasonable monitoring of employee conversations if done for purposes of security or operational quality. The best manner to comply with this law is to disclose to employees any monitoring of communications.

⁃    Example: An employer may have surveillance cameras in the workplace, but the ability to record audio is limited.

•    Employee Polygraph Protection Act (EPPA) – The EPPA prohibits private employers from using a polygraph while screening job applicants. That is, an employee or prospective employee cannot be compelled to submit to a polygraph as a condition of employment. There are certain exceptions for current employees who may be the subject of inquiry or personnel in sensitive industries.

⁃    Example: In some instances, private security firms and firms that manufacture or sell controlled substances may subject employees or applicants to polygraph examination based upon the sensitive nature of the position.

•    Drug Testing – Some states place limits on the ability of an employer to conduct drug tests of employees. These laws generally do not apply to job applicants.

•    Discussion: How do you feel about the federal or state governments regulating the ability of private businesses to infringe upon the privacy of workers? Are these provisions too restrictive or not protective enough of employees? Why? Do you believe that these laws accomplish the underlying objectives?

•    Practice Question: Erin is applying to work as a government contractor for Halliburton oil consulting. This position will require her to embed in US military units to negotiate oil contracts in war-torn, Middle-Eastern countries. Does Halliburton have the ability to require Erin to submit to a polygraph during the application process or once she is an employee?

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