What Workplace Information is Protected by Privacy Laws?

"Right to Privacy." A simple phrase which, as it turns out, describes a very complex and difficult concept. In our post 9/11 world, the right to privacy has become the subject of much legislation and even more discussion. For employers, however, privacy rights are not so much a political notion as they are a practical reality. Employers who remain unaware of workplace privacy laws do so at their ever-increasing peril. In fact, there are many legal professionals who predict that privacy matters will soon surpass wrongful discharge as the leading reason for employment-related litigation.

Privacy in the workplace actually applies to two different types of information: information about the employee and information which may or may not be property of the employee. Employers can better protect themselves from liability for privacy-related errors (of omission or commission) and effectively manage their human resources by establishing a co-employer relationship with a Professional Employer Organization (PEO).

To the casual observer (i.e., anyone not tasked with human resources administration responsibilities), privacy in the workplace is a fairly simple, straightforward matter.  There is a common perception that so long as the job-related equivalent of name, rank and serial number (job application information, health/insurance data and social security number) are kept confidential, the employer has met its burden of maintaining the employee's privacy.  This is, of course, not correct.

Privacy in the workplace is a potential issue not just when dealing with drug tests, credit reports and criminal background checks.  There are many other potential situations where privacy concerns may arise:

•Disciplinary action
•Attendance records
•Personnel records 
•Employee birthdays
•Family information
•Health information (about the employee and/or family members)
•Romantic relationships in the workplace
•Dissemination of employee contact information
•Reference checking of former employees by prospective employers
•Workplace surveillance 
•Performance monitoring
•Grievance/employee complaints about the workplace, the employer or co-worker(s)
•Employment Assistance Programs for drug and/or alcohol abuse
This is not an exhaustive list; it is merely an attempt to identify areas in which employers often find themselves exposed to labor complaints and litigation, the result of which can have a detrimental impact on company morale.  Ironically, when an employer mishandles a privacy matter, it rarely remains private.  
The internet and social media raise privacy issues of a different nature.  Does an employee have the right to privacy in his or her personal communications, even if they occur in the workplace via the use of media the company provides?  What if that communication occurs during non-work hours but, again, via a company issued cellphone, laptop or tablet?  Or what if an employee uses his own laptop but accesses the internet through the company's IP address? How can an employer ensure privacy rights while also making sure employees are not revealing company secrets.  
There is no single correct answer to any of these questions.  At the end of the day, the answer lies in the specific policy of the employer with respect to each of these issues.  A comprehensive privacy policy that addresses information about the employee and information that arguably belongs to the employee is key in avoiding a successful claim or lawsuit against the company.  However, having comprehensive policies about workplace privacy is only effective as long as those policies are constantly updated to reflect changes in the law. 
A PEO provides the expertise and resources that help prevent an employer from violating workplace privacy rules.  First, as a co-employer, a PEO partners with companies to manage human resources and is especially adept at records storage management.  As well, a PEO has the resources necessary to stay abreast of all local, state and federal laws that effect employers and can amend policies and/or practices as necessary and in a timely manner.

Carolyn Sokol is a frequent contributor to and writes about issues that may affect small businesses such as administrative duties which can be handled by an Employee Leasing company.  She is a founder of PEOcompare.com which helps match small businesses with the right PEO Companies for their particular needs. Her background is in marketing and communications, employee education and training, development of policies and procedures and the ongoing delivery of outstanding service to customers.

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