Privacy Issues in the Workplace

O VERVIEW

S ECTION 1

A. G OAL OF W ORKBOOK Privacy rights implicate many of the actions employers take concerning employees and prospective employees. There is a privacy element to many of the laws that protect applicants and employees in today’s workplace. For example, anti-discrimination laws protect applicants and employees not only from discrimination, but also from giving up personal information such as medical condition or national origin that might make them vulnerable to discrimination. Privacy rights arise from a vast array of federal and state laws that are not only numerous, but often difficult to interpret. Nevertheless, employer obligations and liability in the area of privacy rights rapidly continues to expand. Thus, an understanding of privacy rights is essential to employer due diligence, both to comply with the law and to prevent and defend legal challenges. This workbook is designed to be a reference tool for employers. It is divided into the major personnel areas impacted by privacy. When faced with an issue in one of these areas, employers can turn to the applicable section of this workbook for an overview of their legal obligations. Of course, no reference guide is a substitute for expert legal counsel. We recommend that employers seek the advice of employment law counsel for difficult or complex employee privacy right questions. B. T YPES OF E MPLOYER L IABILITY IN P RIVACY A RENA This workbook covers the specific laws that apply to each of the major personnel areas impacted by privacy. The following, however, is the big picture concerning employer liability in the area of workplace privacy. Employees pursuing a legal challenge against their employers on the basis of privacy rights can rely upon one or more of the following categories of law. a. Federal Constitution: First, Fourth, and Fourteenth Amendments While there is no specific federal right to privacy explicitly stated in the United States Constitution, the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution have been interpreted to confer a right of privacy in certain personal matters. 1 The United States Supreme Court has also interpreted the First and Fourth Amendments to the United States Constitution to confer individual privacy rights in the area of employee free speech, property, association, and personal space. Fourteenth Amendment employee privacy rights boil down to one of two categories: (1) the right not to have to disclose or uncover personal information; 2 and (2) the right not to have employers interfere with employee personal lives. 3 1. F EDERAL AND S TATE C ONSTITUTIONS

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