Privacy Guidelines and Rights in the Workplace

With increased technology, including computerized record keeping, instant access to data, and enhanced surveillance methods, the average worker today faces an inordinate amount of more scrutiny than previous generations.  Conversely, employers are wary to hire or keep employees with questionable backgrounds or faltering productivity, because a better candidate can usually be easily located.  In the broadest sense of the law, employers may only intrude on an employee’s private personal life regarding matters directly related to legitimately running their organization.  Abuse of a worker’s right to privacy, however, does occur in the workplace frequently and there are legal routes to rectify these wrongs.  A number of these most controversial and common workplace privacy rights and guidelines are further explained in this ExpertHub Guide on Privacy Guidelines and Rights in the Workplace.

Workplace Law and Employment Personnel Records

Most employers are legally responsible for maintaining certain pieces of information on employees, including immigration status, age-related information, wage and hour information, tax withholding amounts, and other accrued and expended benefits and vacation time.  In time, personnel files can come to contain information that is not legally required, such as your performance reviews, any demerits you receive, complaints from other employees and clients, and recommendations from previous employers may all find their way into your now expanding personnel file.  But how do you know what is really in your personnel file, and who else has access to this personal and private information?

Access of Personnel Files by Others

Realistically, very few people should have access to your personnel file.  In the private sector, there are no set limitations on what can and cannot be preserved in a personnel file per federal laws.  Some states, however, began filling the void and actively regulated a number of pertinent points regarding personnel file access, including:

  • Employee entitlement to duplicates of their own personnel file
  • Employee’s contesting or disputing items in their own personnel file
  • Former employees retaining their original personnel file

Access to Your Own Personnel File

Federal law sets no uniform standard for your right to access your personnel file.  State laws vary, and depending on your state, there may be a number of caveats to address before you can actually view your personnel file.  For example, some states allow employees to view their own personnel file on record with their employee during the course of active litigation between a worker and their employer.  Other states, however, set specific periods and request processes for employees and employers to respond.  The best advice is for employees to document all requests made to their employer for personnel files, and if possible, maintain records of these written requests, including date, time, content, and method of delivery. If you met further refusal from your employer to hand over your personnel file, perhaps it is time to consult with a legal expert in your state.

Employers Learning about Criminal Records

Criminal convictions and arrest reports are part of the public domain, and in theory, available to virtually anyone.  With the internet, potential employers can access these records easier than ever.  Some state laws offer protections to individuals possessing arrest records that did not lead to conviction, but in reality, any employer can find this information.  Additionally, most employers are bound by company policy to actively perform criminal background screening on job candidates, and regularly do so, in spite of any state laws on the books.  Every state has different variations of laws protecting employees from exposing their criminal record, including on how to answer questions from prospective employers inquiring about whether you have been previously arrested or convicted of a crime. 

Employer Access to Your Medical Records

The ADA, or Americans with Disabilities Act, provides broad level of federal protection preventing employers from disseminating medical information about their employees.  Per the Americans with Disabilities Act, employers must follow specific standards when maintaining records of your medical history, including:

  • Maintaining records in a secure location with limited access by other employees
  • Allows only direct supervisors of employees with disabilities to be aware of the employee’s medical need
  • Office medical or first aid staff are generally allowed liberal access to personnel medical files in the event an incident occurs
  • Government and insurance officials with clear business purposes can access outstanding employee medical file information

How Much Can an Employer Know about Your Credit History?

Under the Fair Credit Reporting Act, persons with a prurient business interest in your credit history may have access to this information, and in virtually all cases, employers fall under this domain.  An amendment to the Act requires employers to obtain a written acknowledgement by prospective employees to access their personal credit history, but in reality, most employers will never suffer adverse consequences for doing so without your express approval.  If you are fired, not hired, or somehow suffer from an employer looking at your credit history, the employer must present a written report of the information they obtained to make their decision and instructions on how to challenge this information.  Many employers will simply find another, less contestable, means of terminating your relationship with them. 

Are Workplace Tests Legal?

In the information age, employers concoct alarmingly more invasive employee testing routines each year, which ostensibly will match the best employee to the prospective task.  In some cases, these tests may be illegal and a violation of your privacy rights.

Next Page: Medical Examinations and Testing

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