EMPLOYEE PRIVACY.

It's not uncommon for employees today to complain about "Big Brother" looking over their shoulder. With the increasing availability of sophisticated monitoring technology, these complaints have grown louder and the issue of workplace privacy is spilling over into the courts. It's part of a supervisor's

There are many legitimate employer interests that justify intrusion of employee rights to privacy in certain circumstances. Other motives, however, clearly cross the lines of propriety and professionalism.

Most states nowadays have privacy protection legislation. Part of the problem is that there are no hard and fast agreements on reasonable expectations for rights of privacy. What privacy is an employee entitled to? What is invasion of privacy?

The four main types of courtupheld privacy violations include: intrusion (locker room and bathroom surveillance); publication of private matters; disclosure of medical records; and appropriation of an employee's name or likeness for commercial purposes. Following is a brief summary of what is permissible regarding employee privacy.

Criminal History Inquiries

It's permissible to make inquiries about a job applicant's criminal history. In many states, however, you may not use an arrest that did not result in a conviction as a determining factor in a decision to hire an applicant. You are free to use convictions to determine eligibility for employment. In fact, in some circumstances, you could be found negligent if you hire an employee with criminal convictions, where the employee could endanger others in the course of his/her employment. If you don't inquire about an employee's criminal past, you could be held liable for on-the-job offenses committed by the employee.

Credit History Inquiries

Your right to require credit reports for employment purposes is limited under some state laws. These laws generally require that certain safeguards be in place to protect the employee, including providing written notice about for whom the report is requested; opportunity of the employee to request a copy of the report; and an opportunity for the employee to obtain the name and address of any agency that provided information to you.

It is best to have your employees sign a consent form when you hire them, authorizing you to obtain credit information about them.

Communication Privacy

Eavesdropping. Generally, both state and federal law prohibit eavesdropping on confidential communications. Such eavesdropping can occur in the workplace through the monitoring of telephone calls, or through the use of recorders to record confidential conversations. However, an employee may consent to the monitoring of his or her communications. You should never record the confidential communication of another person without first seeking legal counsel, since such recording is usually a crime.

Many employers require as a condition of employment, a signed statement by each employee acknowledging that the telephone calls made at work are not considered confidential communications. Under these circumstances, such communications are not considered "confidential," because there is not a "reasonable expectation" of privacy.

E-mail. Most state laws prohibit unauthorized access or retrieval of e-mail. Employers generally comply with these laws by adopting written policies that inform employees that their e-mail may be reviewed or monitored. You should never intercept an employee's e-mail, without the employee's consent or clear written guidelines to which the employee has agreed.

Medical Exams

You can require employees to undergo routine medical or physical examinations, provided the examinations have a reasonable relationship to the work the employee or applicant will be performing. However, if a medical or physical examination is not job related and/or has an adverse impact on a particular protected class, such as women, you may face liability for discrimination.

If an employee takes a physical or medical examination, and it's determined that the employee suffers from a disability, then the employee may be protected by the provisions of the Americans with Disabilities Act (ADA). The ADA bars employers with 15 or more employees from requiring medical examinations to determine the existence or extent of a disability. However, if an employee's or applicant's health problems or disability would have a substantial and injurious impact on an employee's job performance, or ability to perform the tasks without being a threat to themselves or others, then you can require the employee to undergo examinations to determine his/her ability to work.

Physical examinations are generally allowed only after a job offer has been made, and then only if all job applicants for the same job category are required to be examined. The results of such an examination may be used to determine the applicant's physical or mental ability to perform the job, as well as to determine whether or not you can male reasonable accommodations for the employee to perform the job.

Preventive Actions to Take

When addressing the issue of employee privacy in your workplace, you may want to consider the following measures to help minimize the possibility of litigation:

* Inform employees that they shouldn't assume privacy in the workplace. Require employees to acknowledge the company's policy in writing.

* Always have a good reason for any invasion of worker privacy. Use private information only for legitimate purposes.

* Limit access to private information about employees to those who need to know.

* Secure employee medical records separately from other personnel files.

* Obtain signed permission releases or waivers before using an employee's name or photograph in any commercial advertisement, promotional material or training film.

When considering the workplace of today, there is no question that getting the job done and achieving organizational goals are important. So are protecting and respecting individual employee rights. Common sense and good judgement are your best tools for balancing employer interests with employee rights.

Milton Zall is a freelance writer who specializes in taxes, investments, and HR/business issues. He is a Certified Internal Auditor and a Registered Investment Advisor.