Privacy Issues in the Workplace

Fraternal Order of Police v. City of Philadelphia 21 A federal court was called upon to decide the constitutionality of an employment questionnaire that contained questions about medical, psychological, and financial condition, and similar types of information. The questionnaire was given as a condition to reassignment to an elite police unit, and contained the following questions, (that the trial court found violated the employees’ right to privacy): “List any physical defects or disability, also list any extended time spent in the hospital for any reason.” “Are you now or have you ever been…treated or observed by any doctor or psychiatrist…for any mental or psychiatric condition?” “Do you gamble? a) How often? b) How much?” “List each loan or debt over $1000….” These questions were ultimately approved by the appellate court but based only on the grounds that the employer issued the questionnaire for a position in an “elite investigations” police unit. The court also held that the individuals applying for the elite unit had a decreased expectation of privacy. After subsequent appeals on whether the City had sufficient safeguards against unnecessary disclosure of the confidential information and whether the questions violated the officers’ rights against self-incrimination, the appellate court approved the use of the questions and vacated the district court’s injunction against the use of the questions. 22 National Aeronautics and Space Admin. v. Nelson et al 23 . The U.S. Supreme Court held that form questionnaires asking employees about treatment or counseling for recent illegal drug use and asking open-ended questions of the employees’ landlords and designated references did not violation the employees’ right to information privacy. The applicants sought contract positions not involving classified material with the Jet Propulsion Laboratory. They were required to complete a Form 85 which asked for: (1) background information, including educational, employment, residential, and military histories; (2) the names of three references; and (3) disclosure of any illegal drug use within the past year, along with any treatment or counseling received for such use. Each of the applicants' references, employers, and landlords were sent a different questionnaire, known as a Form 42, which sought information about the applicant's honesty, trustworthiness, and any adverse information about the applicant. “reasonable in light of the Government interests at stake.” 24 Under the federal Privacy Act 25 , the information collected through the questionnaires is “shielded by statute from ‘unwarranted disclosur[e].’” 26 The Privacy Act, which “covers all information collected during the background-check process,” permits the Government to “maintain records” about a person “only to the extent the records are ‘relevant and necessary to accomplish’ a purpose authorized by law.” 27 Further, the Act requires “written consent” before the Government can The U.S. Supreme Court held that, assuming a constitutional right to information privacy exists, the information requested in the forms was

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 14