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.

Topics Include:

• Overview
  • Goal of Workbook
  • Types of Employer Liability in Privacy Arena
• Hiring Inquiries and Background Checks
  • Hiring Interviews, Questionnaires and Tests
  • Conducting Reference and Background Checks
  • Criminal Records
  • Fingerprint Records
  • Polygraph Examinations
  • Responding to Reference Checks
• Medical Testing and Medical Information
  • Applicable Laws
  • Pre-Offer Inquiries and Examinations — What You Can and Cannot Ask
  • Job Applicants Before Making a Conditional Offer of Employment
  • How to Handle the Obviously Disabled Applicant
  • Post-Offer Medical Examinations and Inquiries
  • Existing Employment Stage: Those Who Are Already Employed
  • Denial of Employment Based on Medical Examination Results
  • Current Employees
  • Fitness for Duty Examinations
  • Can the Doctor Have an Employee’s Prior Medical Records?
  • Handling and Maintenance of Employee Medical Information
  • Disclosing Medical Information
• Drug and Alcohol Testing and Information
  • Employer-Regulated Drug and Alcohol Testing
  • DOT-Regulated Drug and Alcohol Testing
  • Maintaining Drug and Alcohol Test Results
• Personnel Records and Files
  • Internal Access to Personnel Records and Files
  • Third Party Access to Personnel Actions, Records, and Files
  • Access to Personnel Records and Files in Litigation
  • Employer’s obligation to prevent identity theft
• Searches and Surveillance
  • Searches of Work Areas
  • Searches of Employees and Employee Property
  • Monitoring of Electronic Communications
  • Applicable Federal Law
  • Applicable California Law
  • California Electronic Communications Privacy Act – Application to Public
  • Employer's Ability to Search Employer Owned Electronic Devices and Emails
  • Guidelines For Electronic Communications in the Workplace
  • Video Surveillance of Employees
  • Tracking Devices
  • Biometrics
  • Employer’s Affirmative Duty To Report Employees’ Unlawful Activity On The Internet
• Regulation of Personal and Off-Duty Conduct        
  • Workplace Relationships
  • Off-Duty Conduct
  • Use of Image or Likeness