Observing Employee Privacy Rights While Maintaining Workplace Safety

As an employer, it’s your duty to make your organization safe for all employees. You have to learn what you can about your employees, both before and after they’re hired, so you can make the right decisions for your workplace and protect everyone who interacts with your business. However, all current and prospective employees have a right to privacy in the workplace, and it’s equally important for you to respect that right.

Technology has revolutionized recruitment and hiring, allowing you to learn more about job applicants than ever before. Though useful, modern technologies collect an excess of personal information and sensitive data during the hiring process. If you aren’t careful, you could infringe on employees’ and candidates’ right to privacy, opening up a moral gray area and potential legal issues.

As an employer, you do have the right to learn about, surveil, and even monitor employees — you just have to do so in a way that doesn’t violate their privacy rights. To strike the right balance between workplace safety and employee privacy, it’s crucial to understand what rights employees and job candidates are entitled to so you can respect them without compromising on the safety of your business.

Federal Laws Protecting Employees’ Rights

There are several key pieces of federal legislation that protect employees’ rights in the workplace. Many of these laws also offer protections to prospective employees and candidates who are going through the recruitment and hiring process.

However, the list below only contains federal laws. Many state and local laws provide additional protections to employees. It’s just as important to be aware of and to follow any state or local laws that may apply to your business.

The Fair Labor Standards Act

The Fair Labor Standards Act of 1938 is a landmark piece of legislation that established some of the most foundational workers’ rights that are still protected today. This includes establishing the 40-hour workweek, instituting a minimum wage, requiring payment for overtime hours, and restricting child labor.  

Having been amended multiple times since it was first passed, the Fair Labor Standards Act is large and complex. There are many exceptions and nuances to the policies outlined in this law that will impact different businesses in different ways. Be sure to see which exemptions, if any, apply to your organization.

Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on certain protected characteristics, including race, color, religion, sex, and national origin. Based on the decision of a 2020 Supreme Court case, sexual orientation and gender identity are now protected characteristics based on sex-based discrimination. 

Under this law, you cannot discriminate against employees based on these characteristics when it comes to the terms and conditions — such as payment, benefits, promotions, discipline, giving assignments or work, and training — of their employment. 

The Americans With Disabilities Act (ADA)

First passed in 1990 and then amended in 2008, the Americans with Disabilities Act (ADA) prohibits discrimination based on disability in different areas, including employment. Similar to Title VII of the Civil Rights Act, this covers many employment practices, including recruitment, hiring, compensation, benefits, leave, discipline, promotions, and job assignments. The ADA does not apply to anyone who uses drugs illegally.

If someone with a disability is capable of and qualified for a job, you cannot discriminate against them because they have a physical or mental disability. Further, you must provide reasonable accommodations to individuals with disabilities so they can do their work safely. If any employee requests a certain accommodation, you do not have to provide it, but you do have to look for another solution for them. 

The Age Discrimination in Employment Act (ADEA)

The Age Discrimination in Employment Act of 1967 (ADEA) prohibits employment discrimination against individuals who are at least 40 years old. Similar to the laws above, it applies to various employment practices, such as hiring, training, and compensation. It also severely limits the imposition of mandatory retirement based on age for most businesses.

Under ADEA, you cannot discriminate against any current or prospective employee due to their age. You also cannot impose any policies that, either intentionally or accidentally, have a disproportionately negative effect on employees age 40 or older.

The Family and Medical Leave Act (FMLA)

The Family and Medical Leave Act of 1993 (FMLA) allows employees to take unpaid leave for certain family or medical issues. Employees’ jobs are protected during their leave. Employees can take up to 12 weeks of leave in particular situations, including the birth or adoption of a child, falling seriously ill, or caring for a spouse, parent, or child who has fallen seriously ill. Employees can take up to 26 weeks of leave if they are caring for a service member who has gotten severely injured or fallen ill.

Not all businesses are covered by the FMLA. You’ll need to reference the law to see which regulations apply to your business. Keep in mind that you may need to balance FMLA leave with other forms of paid or unpaid time off. If you are covered, you can either offer the employee their old job back or an equivalent position with similar pay, responsibilities, and benefits.

What Privacy Rights Do Employees Have?

On top of these fundamental employment rights, there are several areas in which employees have additional privacy rights. You must operate within these rights to ensure the safety of your entire workplace.

Drug Testing

As an employer, you are free to conduct drug and alcohol testing in the workplace. You have more leeway to administer drug tests before hiring an employee, rather than after, as many states restrict post-employment testing. You can test employees if they are using drugs on the job or after an incident at work. 

If you do drug test job candidates or employees, you have to safeguard the results of that test. You should only share it with relevant parties, and only share the relevant information from that test. For instance, the employee’s manager likely doesn’t need to know the exact breakdown of the test, just that the employee either passed or failed.

Background Checks

You are also able to complete background checks on job applicants before deciding to hire them. This plays a key role in your ability to determine the overall quality of a candidate, as well as assess whether, based on their history, they may be a risk to other employees. Like a drug test, you must keep the results of a background check private.

What you can discover from a background check depends on what kind of employment screening service you use, as some are more thorough than others. Generally, you are free to look at a candidate’s online activity, criminal history, previous salaries, medical information, credit history, and union status. However, there may be some exceptions and limitations depending on the laws in your state. In some cases, you may need to get a candidate’s consent before running a background check.

Workplace Monitoring

Workplace monitoring isn’t a new practice, but the explosive advancement of technology has brought it to new heights. There are many ways you can monitor employees and their activities, each with its unique privacy considerations:

• Telephone calls: You can monitor, listen in on, and record business-related phone calls and text messages on a company phone. You may be able to do the same even if an employee uses a personal phone, though you will likely need to create a privacy policy and obtain employee consent before doing so.

• Search history and internet use: You cannot look at an employee or candidate’s private internet history when they are conducted on a personal device. However, you can access their search history and monitor their internet use when an employee uses a company device. You can also access anything that an employee or candidate shares publicly online.

• GPS Tracking: You can use a GPS device to track employees’ physical locations. You may place a GPS device in company vehicles, as well as in-company cell phones, laptops, and other devices. Depending on your location, you may be able to track employees’ personal vehicles or devices. 

• Email: Similarly, you may be able to read employees’ emails when they are sent from company devices or accounts — even if they are personal messages. You cannot read personal emails that are sent from personal devices and do not go through your company’s network.

• Video surveillance: You can use video monitoring in the workplace as long as there is a business purpose for doing so. In many states, you can record employees without their knowledge or consent. In others, you are forbidden from recording employees when they do certain activities, such as when they use the restroom or change in a locker room.

• Monitoring software: You can use monitoring software to observe all of an employee’s digital activities on a company device. This includes the contents of their screens and keystrokes. You typically cannot monitor employees’ personal devices unless they are being used for business purposes.

These forms of monitoring and surveillance can shed light on potentially unsafe, unethical, or illegal employee activities.

As with drug testing and background checks, the specific laws regarding employee monitoring vary from state to state. 

Speaking to Employees About Monitoring And Privacy

You also need to decide how or if you will inform employees about your workplace monitoring. In some states, you are required to get employee consent before you can monitor them. In others, you aren’t even required to tell them about your surveillance.

If you do choose to speak to your employees about monitoring, be sure to explain its purpose and how surveillance factors into a safer, more productive workplace. Go over what, specifically, you’re tracking. Create and detail company privacy policies, especially if employees plan to use their devices for business purposes. 

It’s best to be as transparent as possible and communicate this information upfront, so employees and job candidates have all the information they need to make a decision about this work environment. Employees can then have agency over what they share with you and maintain a level of privacy they are comfortable with.

Ultimately, the extent to which you monitor employees, and how you discuss it with them, is your decision. You know your workplace, and you shouldn’t hesitate to make the choice that is in the best interest of your business and your employees.