
Discrimination Laws. State and federal
discrimination laws prohibit employers from obtaining information related to
the protected class status of applicants or employees, such as information
about national origin, religion or genetic or family medical history. Employers must take care not to search for
such protected information, whether through surveillance or otherwise, and must
sequester it within a small need-to-know circle when it is unintentionally obtained.
Protected Activity Laws. A variety of laws protect certain employee
activities, and legal risks are created for employers when surveillance encompasses
legally-protected activity. The National
Labor Relations Act (NLRA) is often applied to employer monitoring and surveillance
activity, with varying results depending on the particular circumstances. Surveillance, or even the impression of surveillance, if instituted in response to a union
organizing campaign, is likely to violate the NLRA. On the other hand, enhanced surveillance of
employees that coincides with organizing activity may be found not to violate
the law when it is justified by legitimate concerns for security, product
integrity, or quality control. In a
unionized workplace, video surveillance implemented without first bargaining
with the union may violate the NLRA, but ongoing video surveillance for security
reasons is otherwise generally permitted.
A
patchwork of other state and federal laws protecting certain employee activity may
also be implicated in employer surveillance initiatives. These include state prohibitions against taking
employment action based on employees’ use of lawful consumable products such as
tobacco. They also include federal and
state “whistleblower” laws, as well as a wide range of statutes containing
anti-retaliation provisions. Anytime
surveillance looks for or finds such activity, it is important for the employer
to have a policy and practice in place designed to reduce the possibility of
liability arising from such information.
Privacy. Laws governing general rights of privacy for
employees vary from state to state. Many
states also have laws about audio (and in some cases, video) recording of
employee activity. Employers operating
in multiple states must be especially mindful of the variations in these laws
to avoid legal claims of invasion of privacy or unlawful monitoring.
Email. Monitoring
employee work emails and online activity involves some risk of legal claims,
but it is an appropriate and lawful action if an employer is using best
practices, as discussed in our posts here and here. Generally, one of the best ways for an employer to reduce its risk of liability in this context
is by providing employees with clear advance notice of its surveillance
policies and by creating policies that set appropriate expectations regarding
privacy on the employer’s systems and property.
Other Federal Laws. A variety of other federal
enactments have important implications for employers engaged in workplace surveillance. These include the Fair Credit Reporting Act, which
governs investigative reports prepared by a third party for employment
purposes, the Electronic Communications Privacy Act, the Stored Communications
Act, and the Computer Fraud and Abuse Act, all of which have effects that may
enable or limit surveillance depending on the facts and circumstances.
We will continue to blog about this important
subject next week, offering some practical tips and best practices. Meanwhile, we encourage you to refer to the DEED/Gray
Plant Mooty Social Media Guide that addresses many surveillance-related
issues. The guide is available for free on GPM's website.
No comments:
Post a Comment