© 2015 Cengage Learning. All Rights Reserved. May not be copied,.docx

© 2015 Cengage Learning. All Rights Reserved. May not be
copied, scanned, or duplicated, in whole or in part, except for
use as permitted in a license distributed with a certain product
or service or otherwise on a password-protected website for
classroom use.
Employment law for human resource practice, 5e
David Walsh
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Privacy on the Job: Information, Monitoring, and Investigations
Chapter 17

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Chapter Outline
Overview of Workplace Privacy Protections
Handling Records and Employee Information
Monitoring and Surveillance of Employees
Investigation of Employee Conduct
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Overview of Workplace Privacy Protections
Employers gather a great deal of information about their
employees, monitor their employees’ actions and investigate
allegations of wrongdoing
The volume of information available about employees and the
means of monitoring them have expanded greatly in recent
years, raising questions of privacy
What are the legal limits to incursions upon privacy in the

workplace?
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…Workplace Privacy Protections– Constitutional Protection (1
of 2)
Public employees enjoy privacy rights deriving from the 4th
Amendment to the U.S. Constitution, which prohibits
unreasonable searches and seizures
Note that such rights have limits
Public employers need not establish probable cause or obtain
warrants before conducting workplace searches
Note that such searches and other actions impinging on privacy
must be reasonable

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…Workplace Privacy Protections– Constitutional Protection (2
of 2)
A reasonable expectation of privacy is key to privacy claims
based on the constitution and on other grounds
If an employee cannot be said to have had a reasonable
expectation of privacy in the circumstances, she will not prevail
in a privacy claim
Employers should establish privacy policies that alert
employees to the limits of their privacy rights in the workplace
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…Workplace Privacy Protections– Common Law Protection (1
of 4)
Whether there is a reasonable expectation of privacy is a case-
by-case determination based on policies, practices, and other
circumstances.
Most states recognize the following privacy torts:
Intrusion upon seclusion
Public disclosure of private facts
Placement in a false light
Appropriation of a name or likeness

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of 4)
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of 4)

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of 4)
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…Workplace Privacy Protections– Statutory Protection of
Privacy
Several statues concern privacy or have privacy-related
provisions:
The Privacy Act of 1974
The Electronic Communications Privacy Act
The Americans with Disabilities Act
The National Labor Relations Act
The Occupational Safety and Health Act

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Handling ...Employee Information– Personnel Records (1
of 2)
While a few states have laws governing an employer’s handling
of personnel records, the employer’s policy generally controls
Some states grant employees the right to review and copy their
personnel files, and restrict access by others
The federal Privacy Act governs the handling of personnel
records of federal employees
Violations can be difficult to prove because plaintiffs must
show that violations were intentional or willful and that there
were actual damages, such as an adverse employment action
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Handling ...Employee Information– Personnel Records (2

of 2)
Employers generally must allow union representatives to see the
personnel files of their members
Recommended: Even though few private-sector employers are
legally required to do so, it is sensible to obtain the consent of
employees prior to divulging information from their personnel
records to third parties
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Handling ...Employee Information– Medical Information (1
of 3)
Under the ADA:
Only medical information that is job-related and consistent with
business necessity can be obtained from current employees
Employers must keep information regarding an employee’s
medical condition or history in a location apart from other
personnel records and treat it as a “confidential medical record”
Such information should be made available to managers,
supervisors and first aid personnel for reasons of reasonable
accommodation and treatment

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of 3)
Under the OSH Act:
Employees and unions have the right to access members’
medical and exposure information.
Such access must generally be provided within 15 working days
Medical monitoring of employees may be required.
Records of exposure to toxins must be kept for 30 years
Medical records must be kept for the duration of employment,
plus 30 years
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of 3)
HIPAA regulations primarily affect health care providers and
self-insured companies
Any employer that receives protected health information from

insurers or health care must:
Limit the uses and disclosure of that information;
Train staff on maintaining the privacy of medical information;
Designate a privacy officer with responsibility for compliance;
and
Notify employees of their rights
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Monitoring …Employees –
Video Surveillance
In general, employers can train video cameras on their
employees without significant legal concerns, at least in places
open to view
Employers must not conduct surveillance of employees engaged
in protected concerted activities, including union organizing.
Recommended: If your firm uses video monitoring, inform
employees that they are subject to monitoring and surveillance,
even though such notice may not be legally required

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Electronic Communications (1 of 3)
Under the Electronic Communications Privacy Act (ECPA),
employers (and others) are prohibited from:
Intentionally intercepting (through the use of electronic,
mechanical, or other devices) wire, oral, or electronic
communications
Disclosing such information
Unauthorized accessing and disclosure of stored electronic
communications
The distinction between “intercepting” and “accessing” has
proven troublesome for email and internet transmissions
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“Intercepting” generally means capturing the communication at
the exact time it is being sent
Interceptions are legal with prior consent

Communication service providers are exempt
Example: An employer’s search of an employee’s stored emails
in its own system is not a violation
Business users of the provider’s equipment are exempt if the
equipment is used in the ordinary course of business
Example: An employer could install additional extension
phones to listen in on employees’ business (but not personal)
calls
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The law regarding the privacy of workplace electronic
communications are in flux
Overall, employees should assume that their emails and other
electronic communications will be read by their employers
Recent cases held against employees, finding they had no
reasonable expectation of privacy
One court wet so far as to cite the existence of a “community
norm” in which it is now common practice for employers to
monitor employee computer use
The Supreme Court has been cautious about expanding privacy
rights in electronic communication

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Investigation…Employee Conduct- Searches (1 of 3)
Conduct Investigations professionally
The people conducting them should be credible and convincing
if called on to be witnesses in legal proceedings
Under the Fair Credit Reporting Act, employers may use outside
investigators for suspected employee misconduct without
obtaining consent
But if an adverse action is taken based on that information, the
employer must disclose it to the employee
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Generally, employers may conduct workplace searches, subject
to the Fourth Amendment (for public employees) and privacy

torts (particularly intrusion upon seclusion)
Obtaining consent is best
Employers should:
Establish policies,
Notify employees regarding the circumstances under which
searches will occur, and
Conduct searches only as stated
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Searches should be conducted in a reasonable manner
not overly broad
not resulting in destruction of employee property
not discriminatory
Evidence obtained through searches, must be handled carefully
and kept in a secure location
Strip searches and deceptive means of conducting searches
should be avoided

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Investigation…Employee Conduct- Interviews & Interrogations
Poorly performed interrogations have great potential for
generating legal claims, especially for false imprisonment and
infliction of emotional distress
Under current law, most employees do not have the right to
have attorneys present in these situations
But unionized employees called into interviews they reasonably
believe are likely to result in discipline have the right to have a
union rep present if the employee requests it, tho if no rep is
available, the interview can proceed
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Investigation…Employee Conduct- Polygraphs (1 of 2)
The Employee Polygraph Protection Act (EPPA) prohibits most
pre-employment polygraph exams by private-sector employers
However, polygraphs can be used for “ongoing investigations”
of theft, embezzlement, sabotage, and related activities that
result in loss or injury to an employer’s business
Even then, submission to a polygraph exam cannot be required

or made a condition of employment, and an employee cannot be
disciplined or discharged for failure to submit
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Investigation…Employee Conduct- Polygraphs (2 of 2)
During the exam, employees:
Must not be asked questions designed to “degrade or needlessly
intrude” on their privacy
Must not be asked questions concerning religious beliefs,
opinions about racial matters, political beliefs, sexual behavior,
and beliefs or activities regarding labor organization.
Have the right to review all questions beforehand
Must be informed about any observational or recording devices
being used

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Acting on Results of Investigations
If the wrong conclusions are drawn and communicated to others,
defamation claims may arise, and the qualified privilege may be
lost
Recommended: Treat such information as sensitive and limit
communication to those with a legitimate need to know
Malicious prosecution occurs when criminal claims are initiated
against an innocent party
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What Would You Do?
You are the manager of a clothing store which caters to young,
college-age students in your university town, and most of your
employees are college students. One such employee is Leanne.
One day at the store, you answer the phone. The caller asks for
Leanne, and when you advise that Leanne is not here today, the
caller tells you that she is calling from Dr. Wilson’s office to
report that Leanne’s HIV test came back positive, and that she
should come back in for a re-test as soon as possible. What
would you do?

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Next:
Chapter 18– Terminating Individual Employees
How do you fire someone without incurring legal liability?
What are the reasons for which you may NOT terminate
someone?
The answers to these questions and more are next.
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Instructor’s Notes: (1 of 2)
Instructor’s notes for What Would You Do?
Students should first realize that the report of Leanne’s positive
HIV test should never have been divulged to the manager, and
the manager must maintain confidentiality of this information.
The manager should immediately take steps to notify Leanne
privately of the call, and perhaps of the message.

Ideally, students will recognize that they should not record this
information in Leanne’s personnel file.
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Instructor’s Notes: (2 of 2)
They should recognize that, if the retest confirms the diagnosis,
Leanne is considered disabled under the Americans with
Disabilities Act, and the manager should consider whether
Leanne poses a direct threat to herself or others on the job, and
if so, whether a reasonable accommodation can be made. Given
the clothing store environment, it would seem that there is no
direct threat, and that a reasonable accommodation can be made
should the re-test confirm the diagnosis.

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Employment law for human resource practice, 5e
David Walsh
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Performance Appraisals, Training and Development
Chapter 16

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Chapter Outline
Performance Appraisals
Performance Criteria & Standards
Performance Appraisal Process
Feedback on Performance
Training and Development
Training Contracts
When is Training Legally Required
Selection of Trainees
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Performance Appraisals (1 of 4)
Regardless of the efficacy of performance appraisals, they hold
great legal significance
The central legal concern is that they not be discriminatory
In general, employers have no duty to conduct performance
appraisals
Employers cannot appraise only men and not women, as such
action would be discriminatory

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Negative performance appraisals do not constitute
discrimination
However, if a biased negative appraisal becomes the basis for
the denial of an employment opportunity, disparate treatment
discrimination can be alleged
Unwarranted negative performance appraisals could constitute
“materially adverse actions” in cases of retaliation if they are
used to punish employees for exercising their rights
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Performance appraisals affect many employment decisions,

including
promotion,
training and development,
raises,
and more
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Courts will not review performance appraisals to determine
whether the appraisal was correct
Only to determine if there is discriminatory intent or other
illegal motives
Recommended: Employers should conduct performance
appraisals regularly and maintain credible, written
documentation of performance

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Performance Appraisals – Performance Criteria… (1 of 3)
Common performance criteria include
work quality and quantity;
attendance and punctuality;
judgment;
ability to work with others in a team;
leadership;
and so on
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Employers are free to establish criteria and standards of
performance, but must:
take into account the needs of disabled employees;
be consistently applied;
be as objective as possible;
be job related and consistent with business necessity

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Employers can and should hold disabled employees to the same
standards of performance as nondisabled employees who do the
same jobs
Receipt of a reasonable accommodation should not be held in
any way against a disabled employee
If a disabled employee is unable to perform a marginal function
of a job, that function should be removed from the job and not
be reflected in performance ratings
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Performance Appraisals – Performance Appraisal Process
(1 of 4)
Lack of Consistency in Evaluations:
A performance appraisal which is inconsistent with prior
appraisals raises legal issues
After an employee has filed a charge, it appears to be retaliation

Shortly before layoffs or a termination, it appears to be pretext
to justify the decision to layoff or terminate
Performance appraisals must not be manipulated and made more
negative than actual performance warrants
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(2 of 4)
Who Conducts Performance Appraisals?
Employers should provide training or written instructions to
those who conduct performance appraisals
If coworkers or others also participate in performance
appraisals, they also require instruction in good appraisal
techniques and legal issues

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(3 of 4)
Contents of Appraisals:
Appraisers should not shy away from criticism, but their tone
should be measured and professional
Extreme language suggests hostility, and may become the basis
for a cause of action for discrimination or defamation
Courts may view appraisals with both positive & negative
comments as an indictor of a lack of bias
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(4 of 4)
Forced Distribution Method:
Forced distribution methods require that predetermined
percentages of employees be placed into particular performance
categories
Forced distribution rankings are often accompanied by rigid
policies calling for termination or other adverse employment
consequences for those employees ranked in the lowest category
Forced distribution methods of performance appraisal have seen
wide use, although their popularity is waning
Not surprisingly, these systems have become the object of legal

challenges
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Performance Appraisals – Feedback on Performance (1 of
2)
Employers should:
communicate performance appraisals to employees,
provide an opportunity for discussion, and
and allow employees to respond to and appeal them
Employers should not attempt to avoid unpleasant
confrontations by failing to provide employees with feedback
about their performance and opportunities to improve
performance that are routinely provided to other employees

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Performance Appraisals – Feedback on Performance (2 of
2)
Performance appraisal sometimes leads to identification of
deficiencies and placement of employees on performance
improvement plans (PIPs)
Under a performance improvement plan, an employee is given
outcomes that must be attained over some period of time
(usually short) with negative consequences if not attained
A warning to “shape up or ship out”
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Training & Development –
When is Training … Required? (1 of 3)
Training and development programs can make employees more
productive and help them advance in their careers
There are circumstances under which training is legally required
or highly advisable
Significant legal questions can arise regarding who receives
training and who pays for it

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In general, employers have no duty to train their employees
One important exception is training for safety and health
reasons
Over 100 OSH standards call for training employees exposed to
certain hazards; failure to train would constitute a violation of
the OSH Act
Employees have a right to know about hazards on the job
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OSH’s hazard communication standard is based on the principle
of the employee’s right to know about the dangerous chemicals
they encounter on the job so that they can take steps to protect
themselves

Chemical manufacturers, importers must provide a material
safety data sheet for each hazardous chemical
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When is Training … Required?
Other Circumstances…
Firms that contract with the federal government must comply
with the Drug Free Workplace Act (DFWA), and
inform employees about the drug-free policy and dangers
associated with drug abuse;
advise regarding available options for counseling,
rehabilitation, and employee assistance programs;
and advise potential penalties for drug violations.
Where 3rd parties may be injured, good training is required to
avoid claims of negligent training

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Selection of Trainees
Many training & development opportunities are offered on a
limited basis and present questions of selection
The successful completion of training is often linked to
promotions and raises
Much training received is on-the-job training from coworkers
Another valuable form of training are apprenticeship programs,
combining classroom instruction with work under the guidance
of an experienced coworker
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What Would You Do?
You are the HR manager of a small consulting firm. One of your
department managers has been having trouble with a consultant
(Janus) and has just completed his first performance appraisal.
She has submitted it to you for your review before it becomes
part of the record. It contains the following statements: 1)
“Janus is a bad singer stuck in a one-note song. All of his
consulting advice recommends the same action.” 2) “Rather
than give honest advice, Janus says what people want to hear.

He is spineless.” 3) “Janus is a twerpy weasel, and should be
discharged.” What would you do?
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Next:
Chapter 17– Privacy on the Job: Information, Monitoring and
Investigations
Does an employer have the right to read employees’ emails?
Do employees have constitutional rights granting them privacy?
The answers to these questions and more are next.
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Instructor’s Notes:

Students should recognize the personal animus displayed in the
colorful appraisal. The HR manager should consult with the
department manager and verify that the performance issues are
real, then recommend the removal of material which could form
the basis for a defamation claim, or simply appear to be biased
and unfair. The conclusions may remain (“All of his consulting
advice recommends the same action.” and “Rather than give
honest advice, Janus says what people want to hear.”) But the
following statements should be removed from the appraisal:
“Janus is a bad singer stuck in a one-note song. “ He is
spineless. “ “Janus is a twerpy weasel…”

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