Employee Privacy Information Sheet

EMPLOYEE PRIVACY INFORMATION SHEET (HANDOUT)

Drug and Other Testing and Electronic Monitoring

I. Drug Testing

A. How might drug testing infringe upon employees’ privacy interests?

B. Applicable laws

1. Drug Free Workplace Act of 1988 (federal)

a) applies to federal contractors and grantees;

b) requires discouragement of drug use but does not require or regulate drug testing.

2. Certain federal statutes require employers in certain industries (e.g., over-the-road trucking) to drug-test certain categories of employees

3. Special state statutes (23 states): Some require drug testing of certain categories of employees; some limit drug testing to protect employee privacy; some states regulate methods of drug testing.

4. Some cities (e.g., San Francisco) by ordinance restrict private-sector drug testing.

5. Americans with Disabilities Act

a) Does not prohibit most drug testing. However, the testing program must be designed carefully so as to avoid revealing statutorily-covered disabilities;

b) Does not protect current drug users. Protects former users, or people who are erroneously believed to be former users. Even those protected, however, can be tested for drugs on the same terms as other employees.

6. Common law claims

a) Public Policy Tort: Private sector drug testing that contravenes constitutional restrictions on drug testing may be challenged in some states under tort as a violation of public policy.

b) Intentional Infliction of Emotional Distress

(1) Elements

(a) Intent to inflict emotional distress

(b) Extreme and outrageous conduct

(c) Causation

(d) Severe emotional distress

(2) Might be used to challenge extremely offensive method of drug testing.

c) Contract claims: A positive drug testing may not necessarily constitute just cause for discharge, much less willful breach necessary to terminate a stated term contract. Would depend on terms of contract.

7. Federal and some state constitutions restrict some drug testing.

a) Federal constitution applies only to state actors.

(1) 4th Amendment doctrine recognizes drug testing as a search. But the Supreme Court allows much suspicionless drug testing.

(2) Federal 4th Amendment cases on drug testing have been considered persuasive precedent by many courts construing state constitutions and other sources of privacy protection.

b) California and six other states have constitutional provisions that might apply to private sector drug testing.

c) Constitutions with state action requirements might be basis for public policy tort against a private sector employer. E.g., Alaska.

C. Principal method of analysis under the privacy tort

1. First step: “Serious” or “highly offensive” invasion of a legally protected privacy interest

2. Second step: Is there a reasonable expectation of privacy?

3. Third step: Justification

a) Standard used to assess justification: something less than the “narrowly tailored to serve a compelling governmental interest” standard

b) What are the employer interests in drug testing?

II. Polygraphs

A. How might they invade autonomy or informational privacy interests?

B. Sources of regulation

1. Federal regulation: Employee Polygraph Protection Act of 1988

a) Prohibits employers from “accepting or using” polygraphs or applicants except in specified circumstances;

b) Allows polygraphs in investigation of economic loss or misappropriation

(1) Can only ask employees who are reasonably suspected of involvement in a workplace incident that results in economic loss or injury to employer’s business

(2) Cannot ask degrading questions, or questions regarding religious, racial, political, sexual, or union beliefs;

c) Exempts public employers, national defense and security contractors, security firms, and drug firms;

d) Does not preempt more restrictive state law.

2. State statutes: Some states specifically regulate certain forms of testing. For example, California Labor Code § 432.2 prohibits employers from demanding or requiring employees or applicants to submit to polygraph. California Penal Code § 637.3 also prohibits use of “voice stress analysis” without express written consent of employee.

III. Integrity Testing

A. How might integrity testing implicate informational and autonomy privacy?

B. Sources of regulation

1. Federal law: ADA prohibits psych testing to extent it is designed or used to identify mental disabilities, unless employer can demonstrate that freedom from that disability is an essential function of job.

2. State law

a) Some states (Massachusetts, Minnesota, Rhode Island, Wisconsin) prohibit use of psych tests as employment screening device.

b) Other states (California) rely on common law or constitutional claims.

Privacy tort:

(1) Highly offensive invasion: in what respects do psychological or honesty tests invade privacy?

(2) Reasonable expectation of privacy: what is the expectation of privacy, and does it vary depending on the nature of the employment, the nature of the questions asked, or whether the test is administered to applicants rather than employees?

(3) Justification: Note that Soroka adopted a compelling interest standard. A subsequent decision (Loder v. City of Glendale) adopted a lesser “carefully weighs the pertinent interests at stake in an ordered fashion” standard.

IV. Electronic Monitoring

A. Introduction and Overview -- Searching email or computer files:

Comparing electronic and physical searches

1. Expectation of privacy: Do employees have the same expectation of privacy in their email and computer files as they do in their office and regular files?

2. What counts as a sufficient justification?

3. Should a blanket consent as a condition of employment obviate any legal restrictions?

4. See below under Electronic Communications Act and Stored Communications Act for federal regulation.

B. Monitoring - audio, video, computer

1. Invasion of Privacy

a) What is the expectation of privacy?

b) What are the purposes of audio or video monitoring? Deterrence or actual detection? How should this affect the issue of justification?

2. Telephones and audio taping

a) Omnibus Crime Control Act (the so-called Wiretap Act) prohibits electronic monitoring by employers but has exception for listening to an extension phone “in the ordinary course of business.”

b) State laws

(1) California Penal Code § 632 prohibits tape recording conversation without consent of both parties.

(2) Texas state law prohibits tape recording a conversation without the consent of one party

3. Video recording

a) Cal. Lab. Code § 435 prohibits employer from making audio or video recording of employee restrooms or changing rooms.

b) Federal labor law prohibits filming of employees engaged in concerted activity for mutual aid or protection unless necessary because of genuine threat to safety.

4. The Electronic Communications Privacy Act and the Stored Communications Act

a) 18 U.S.C. § 2511 prohibits intentional interception and disclosure of electronic communications, but it exempts person or entity that provides electronic communication service. Thus, if employer is the email provider, it may intercept and disclose messages. In addition, allows interception in “ordinary course of business.”

b) 18 U.S.C. § 2701 prohibits intentionally accessing stored electronic communication, but allows it if authorized by the person or entity providing the service.

c) If the employee consents to monitoring, the employer can freely intercept messages in transit or access and read messages that are stored, thus obviating the task of distinguishing interception from other access, and of determining whether employer is the provider of the service. Consent also eliminates the need to decide whether the employer can rely on the “ordinary course of business” exception. So the crucial question is: what constitutes consent?

(1) If employee consent allows all monitoring, and if consent can be found simply from the existence of an employer policy of monitoring, then there will be no privacy protections for employees if employers get competent legal advice.

(2) Express consent appears to suffice, even when consent must be given as a condition of employment. TBG Ins. Servs. Corp. v. Superior Court, 117 Cal. Rptr. 2d 155 (Cal. App. 2002). Employee signed “policy statement” that he would use computers “for business purposes only and not for personal benefit or non-Company purposes” and that he consented to have his computer “use monitored by authorized company personnel” on an “as needed” basis. Employer fired employee; employer alleged it was for viewing pornography, employee alleged to prevent stock from vesting. In employee’s wrongful termination suit, employer sought discovery of employee’s home computer (which employer had given to employee). Court held computer was discoverable and that employee had no expectation of privacy.

(3) Implied consent was rejected in old cases involving telephone monitoring; legal status of implied consent under Electronic Communications Privacy Act unclear. No consent found where employer had announced policy of monitoring sales calls and said personal calls would not be monitored except to extent necessary to determine nature of call, and no consent found in case in which employees were told “might be forced to monitor calls” if excessive personal calls were not reduced.