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Privacy Developments:
How Far Can You Go to
Gather Information and
Monitor Employees On-
and-Off Work?
Presented for NCHRA by
Daniel J. McCoy
Allen M. Kato
Fenwick & West LLP
April 25, 2012
Introduction and Agenda
Key Privacy Issues in Hiring
Key Privacy Issues During Employment
Key Privacy Issues Upon and Following
Termination
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Key Privacy Principles
Foundational concept: Does employee have right
to privacy re: actions/communications in
workplace or affecting work?
May right of privacy be reduced or eliminated by
notifying employee no right of privacy or
obtaining employee consent for “invasion” of
privacy?
3
Key Privacy Issues in Hiring
Background Checks – Fair Credit Reporting Act
Compliance
Use of external vendor to conduct background
( , ,j , ,
checks (criminal, education, job, credit, and
driving history, etc.) triggers compliance
obligations
So does use of certain public records (criminal
records, tax liens, etc.) to make employment
decisions
4
Key Privacy Issues in Hiring
Background Checks – Fair Credit Reporting Act
Compliance
Obtain applicant’s written consent
Describe checks to be conducted
If adverse information, give required notices
Protect confidentiality of background reports
Warning! FTC cautions users of background
check mobile apps
5
Key Privacy Issues in Hiring
New CA Law – AB 22 prohibits credit checks with
several exceptions:
Managerial positions covered by executive exemption
Positions that involve regular access to personal
information
Positions that involve handling employer financial
accounts and customer finances
Positions that involve access to employer’s
confidential and proprietary information
Additional exceptions for law enforcement positions,
and where credit checks are required by law
6
Key Privacy Issues in Hiring
New CA Law re: Credit Checks
Apart from AB 22 and its exceptions, credit
checks should only be used on limited group of
positions where credit history is truly relevant to
the j b
th job
Fact-intensive analysis: proceed cautiously when
making hiring decisions based on credit history
7
Key Privacy Issues in Hiring
Social media and other Internet-based searches
of candidates – proceed with extreme caution
Reliability of information
John Smith
– Is this your candidate “John Smith” or another
John Smith?
– Was false information planted?
Search reveals protected status that you should
not, and don’t want to know, e.g., disability,
sexual orientation
8
Key Privacy Issues in Hiring
Background Checks – Prohibited Inquiries in
Application Forms and During Interviews
From the obvious, such questions about
marital/family status, national origin, arrests that
did not lead to conviction
To the less obvious, such as asking about
physical description (height/weight), type of
military discharge, bankruptcy, graduation
date(s)
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Key Privacy Issues in Hiring
Background Checks – Drug and Alcohol Testing
Applicant testing generally lawful
Use reputable vendor
applicant s
Obtain applicant’s written consent to test
Describe substances to be tested for and thresholds
triggering positive result
Obtain applicant’s written consent to disclose test
result to employer (usually only “positive” or
“negative”)
Protect confidentiality of test results and related
information, i.e., treat like medical records
10
Key Privacy Issues in Hiring
Post-offer Medical/Psychological Testing
Must be job related, supported by business
necessity & all offerees for same jobs tested.
Use reputable health care provider
Obtain written consent to conduct test.
Describe nature and scope of testing.
Obtain written consent to disclose test results to
employer
Protect confidentiality of medical information
11
Key Privacy Issues During Employment
Monitoring & Searches
Searches of Company Property
Do you have a policy notifying employees of
l i ht to d t h ith
employer right t conduct searches with or
without prior notice or consent?
Do you allow employees to have locked office,
desk, file cabinet?
O’Conner v. Ortega (U.S.) (Employer allowed
employee to have locked office/desk)
12
Key Privacy Issues During Employment
Monitoring & Searches
Searches of Company Property
Do you allow employees to use personal locks on
employer-issued lockers, tool boxes?
employer issued
– KMart v. Trotti (Tex. App.) (Store manager
allowed employee to use personal lock on
company locker in contravention of nationwide
employer policy)
13
Key Privacy Issues During Employment
Monitoring & Searches
Searches of Personal Property
Does your policy specify employer right to
h l t b k k
search personal property, e.g., purse, backpack,
automobile parked on employer parking lot
– U.S. v. Gonzalez (9th Cir.) (Criminal matter;
random search of employee backpack by store
security guard allowed where employee had clear
notice beforehand of theft-deterrent measure)
14
Key Privacy Issues During Employment
Employee Testing
Drug and alcohol testing of current employees
– Random only where expressly permitted by law
(heavily regulated industries like transportation,
( y g p ,
pharmaceutical, energy)
– Reasonable suspicion
– Post-accident in some circumstances
– Follow same privacy protection procedures as
discussed for applicant testing
15
Key Privacy Issues During Employment
Employee Testing
Medical testing
– Concern that employee is unable to perform job
without endangering self or others
g g
– Upon return from medical leave to assess
whether employee is able to perform job safely
– Follow same privacy protection procedures as
discussed for medical testing at time of hire
16
Key Privacy Issues During Employment
Surveillance: Security and Other Videotaping
Camera in plain sight, for e.g., mounted on
ceiling in common areas or production floor
– Never in restrooms or changing rooms
Hidden camera, for instance, for misconduct
investigation
– Only when necessary and limited in scope and
duration
>Hernandez v. Hillsides (Cal.)
Protect privacy – e.g., don’t show “funny”
surveillance video without business need
17
Key Privacy Issues During Employment
Monitoring Conversations
Listening to conversations (eavesdropping)
– Compare listening to conversation in plain sight
versus listening with an ear p
g pressed to closed
door
Monitoring telephone calls
– Jurisdictions may require obtaining consent of
one or all parties to conversation
– California requires consent of all parties
18
Key Privacy Issues During Employment
Monitoring Location by GPS
Notify employees of location monitoring for work
related purposes
Undisclosed monitoring (activating GPS feature
on cell phone or hidden GPS device on company
vehicle) for misconduct investigation?
– Caveat – use with extreme caution – U.S. v.
Jones (U.S. 2012) (Criminal case; search warrant
needed to install GPS on suspect’s vehicle)
- Limit in scope and duration, for e.g., do not
monitor employee location during non-work
hours
19
Key Privacy Issues During Employment
Monitoring Internet Use
What is your company policy re: personal use of
Internet on employer equipment?
What is your company policy re: manager right
to view personal information stored on employer
equipment?
– Doe v. City and County of San Francisco (ND
Cal. 2011) (911 dispatch center employees
allowed to use shared computers for personal
purposes; supervisor found employee’s
personal email in-box “open” and printed 28
emails from 18 month period for use in
disciplining employee)
20
Key Privacy Issues During Employment
Social Media
Here to stay; ignore it at your peril when
considering privacy issues, and drafting and
implementing policy
Having written privacy and social media policies
is not enough – enforce and apply them
consistently
21
Key Privacy Issues During Employment
Federal NLRB Enforcement Re: Social Media
Protects non-union and union employees who engage
in “concerted activity” re: social media posts about
wages and other work conditions
“Gripes” are not protected
22
Key Privacy Issues During Employment
Employee Offsite Activities – What Can
Employers Control?
Offsite activities that are work-related, for e.g.,
company picnic
– Use of alcohol and driving intoxicated; sexual
conduct at offsite meeting; disclosure of trade
secrets
Personal offsite activities that affect the
workplace
– For e.g., personal problems that affect work,
misconduct off work that places the employer in
bad light; texting while driving company vehicle
off work
23
Key Privacy Issues in Termination and
Post-Employment
Misconduct Investigations
Protecting complainant/whistleblower
– Don’t promise confidentiality to complainant
>“Due process may require disclosing identity of
> Due process”
complainant to accused employee
– Disclose private, embarrassing facts to others
only on need-to-know basis
Obligations to accused wrongdoer
– Disclose on need-to-know basis only
– Avoid defamation, e.g., employee is “sexual
predator”
24
Key Privacy Issues in Termination
and Post-Employment
Inquiries About Terminated Employees
Have a policy and stick to it, i.e.,
– Only disclose last job title and dates of
employment, and
– Wage information disclosed only with employee’s
written consent
Avoid defamation, e.g., any hint that employee is
not qualified to work in his/her profession
(“employee terminated for violating sexual
harassment policy”)
25
Conclusion
Questions?
Thank you!
26
To Contact
Mr. McCoy or Mr. Kato
Allen M. Kato
Daniel J. McCoy
Fenwick & West LLP
Fenwick & West LLP
555 California Street,
California St
801 C lif t
i Street
12th Floor
Mountain View, CA 94041
San Francisco, CA 94104
(650) 335-7897
(415) 875-2464
dmccoy@fenwick.com
akato@fenwick.com
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