Employee Privacy: Federal

Author: Jason Habinsky, Haynes & Boone

Updating Author: Brightmine Editorial Team

Summary

• Employers may generally monitor employee workplace activities or activities engaged in while using employer-owned equipment and devices. Employers need to decide what goals are to be achieved by monitoring employees and then determine the most effective and efficient way to achieve those goals. See Monitoring and Protecting Employee Privacy.
• Some federal and state laws limit an employer's ability to monitor employee activities and electronic communications. See Limitations on the Right to Monitor Employees.
• Employers should manage employee privacy expectations through employment policies that notify employees that workplace activities and electronic communications may and will be monitored. See Managing Employee Privacy Expectations.
• Employers may monitor employees in many ways, including using a variety of technology available to monitor computer and internet use. See Types of Monitoring.
• Employers should make sure to implement and enforce policies and procedures regarding employee use of social media and the employer's right to monitor social media use when using the employer's computer equipment and networks. See Monitoring Use of Social Media Networks.
• Employers should be aware of the federal and state laws covering background checks and preemployment testing, and be sure not to compromise applicant privacy rights. See Application/Interview Inquiries and the Right to Privacy.
• Employers may generally perform drug and alcohol testing on applicants and employees. It is permissible to administer a drug and alcohol test to an applicant if:
  • The applicant has been given notice that testing is a condition of employment (preferably, in writing on the job application);
  • The applicant has been extended a job offer; and
  • All applicants are similarly tested. See Testing of Employees.
• If employers want to test employees after hiring, employers should develop a standardized drug and alcohol policy that is well publicized to all employees, in order to eliminate surprises. See Testing of Employees.
• Employers should be aware of the federal and state laws requiring them to safeguard employees' records and confidential information, such as the Health Insurance Portability and Accountability Act (HIPAA) and the Genetic Information Nondiscrimination Act (GINA). See Recordkeeping and Safeguarding Employee Records and Confidential Information.