Searches and Seizures | Privacy Rights

Most employers would claim a legitimate desire to keep workplaces free of illegal drugs, alcohol, and weapons. And most employees would claim that they have a right to expect that their personal belongings will remain safe from the groping hands of their employers.

The legal truth lies somewhere between. Employers are generally free to search through an employee’s personal items kept at work—unless the employee reasonably expects that the spot in which those items are stored is completely private. An employer who searches an employee’s private belongings such as a purse, briefcase, pockets, or car must usually meet a higher standard and have a compelling reason to do so—such as the belief that work property is being stolen and hidden inside.

Someone’s Reading Over Your Shoulder

The American Management Association (AMA) regularly polls U.S. businesses about their policies and practices in monitoring workplaces. The most recent survey reflects a growing concern with the ease and availability of electronic communication on the job—and particularly the bugaboo potential of Instant Messaging (IM).

In some of the more poignant responses to queries from the 2004 survey, companies reported that:

• Employee email has been subpoenaed by a court or regulatory body—20%.

• They have a written email retention and deletion policy—35%.

• Employees receive training about email risks, rules and policies—54%.

• There is a written policy governing email use and content—79%.

• Outgoing and incoming email is monitored—60%.

• Internal email between employees is monitored—27%.

About 58% of the survey respondents confessed to sending and receiving personal IM chat at work—including that dubbed “inappropriate and potentially damaging” such as attachments (19%); jokes, gossip, rumors, or disparaging remarks (16%); confidential info about the company, coworkers, or clients (9%); sexual, romantic, or pornographic content (6%). And, here, the AMA sounded the clarion call, warning that: “employers should view IM as a form of turbocharged email, creating a business record that must be monitored and managed…or face potentially costly consequences tomorrow.”

As an employee, you might want to lay off the IM messages on the job. This instant.

Example

Thomas sold household appliances for a department store that provides each employee with a storage cabinet for personal belongings in a room adjacent to the employee lounge. The store’s employee manual states that, although the company does not provide locks for the cabinets and does not take responsibility for any thefts from the storage area, employees may bring in a lock of their own to secure their individual cabinet.

One day while at work, Thomas was called to the manager’s office, where he was confronted with a letter that had been written to him from his drug rehabilitation counselor. The manager said the letter had been found in his storage cabinet during a routine search by the company’s security force, and that he was being fired because he had a history of drug abuse.

Thomas could likely win an invasion of privacy lawsuit against his former employer because, by allowing Thomas to use his own lock to secure his cabinet, the department store had given him a logical expectation of privacy for anything kept in that cabinet. His claim would be somewhat weaker if his former employer had furnished the locks and doled out the keys or combinations to them, because Thomas would then be on notice that others could get into his locker—defeating his claim to an expectation of privacy.

Another fact that weighs heavily in determining whether an employer’s search is legal is the reasonableness of its length and scope. For example, an employer who suspected an employee of stealing foot-long copper piping might be justified in searching his or her work locker, but not purse or pockets.

Surveillance and Monitoring | Privacy Rights

We have arrived at the place we long feared: Technological advances have made it easy for Big Brother—and anyone else who wants to join him—to watch us. In truth, most employers cannot properly be painted as paranoid Peeping Toms. And the law does require that most workplace monitoring—listening in on telephone calls, audiotaping, or videotaping conversations—must have some legitimate business purpose. Other than that, however, there are very few federal legal controls protecting workers from being watched and listened to while at work.

If a Coworker Has HIV Infection or AIDS

If someone you know has HIV infection or AIDS, you may feel anxious. That’s a normal reaction. People with HIV infection or AIDS also feel anxious about their health and about how coworkers will treat them.

Be supportive of coworkers with HIV infection or AIDS. If you have a close relationship, you can let the person know you are concerned and offer support.

• Most people with HIV infection or AIDS are able to function normally and independently. They want to live and work without being singled out or harassed. They need your understanding and sensitivity.

• Let the person with HIV infection or AIDS decide whom to tell about their situation. Do not spread rumors or gossip about someone with HIV infection or AIDS.

• People infected with the virus have damaged immune systems. Be careful not to expose them to your colds or coughs. Even a minor cold can be dangerous to someone with HIV infection or AIDS.

• Your coworkers may have a spouse, family member, life partner, or close friend with the virus. Be supportive of them.

Source: National AIDS Fund

Some states set their own bounds on how much prying you must tolerate. For example, several states have laws specifically restricting searches and surveillance of employees, and some of those laws are quite powerful.

In Connecticut, for example, an employer that repeatedly uses electronic devices such as video cameras or audiotape recorders to monitor employees in restrooms, locker rooms, or lounges can be fined and sentenced to jail for 30 days. (Conn. Gen. Stat. § 31-48b 1987.)

1. Telephone Calls

In general, it is legal for employers to monitor business-related telephone calls to and from their own premises—for example, to evaluate the quality of customer service. However, a federal law, the Electronic Communications Privacy Act, or ECPA (18 U.S.C. §§ 2510 to 2720), puts some major limitations on that right. The ECPA restricts individuals and organizations, including employers, from intercepting wire, oral, or electronic communications.

Under the Act, even if a call is being monitored for business reasons, which is perfectly legal, if a personal call comes in, an employer must hang up as soon as he or she realizes the call is personal. An employer may monitor a personal call only if an employee knows the particular call is being monitored—and he or she consents to it.

While the federal law seems to put some serious limits on employers’ rights to monitor phone calls, some state laws have additional safeguards. A number of them require, for example, that not only the employee but the person on the other end of the phone must know about and consent to the call being monitored.

Caught Red-Lipped, She Got Away

A decade ago, the first test of the ECPA’s bounds questioned an employer’s right to secretly monitor workplace calls.

In the case, Newell and Juanita Spears, owners of a liquor store, tape recorded and listened to the telephone calls of an employee they suspected of helping rig a burglary of the store. They first warned the employee, Sibbie Deal, to stop making personal calls and that her calls might be monitored. The Spearses recorded about 22 hours of phone calls. While the tapes mentioned not a peep about the burglary, they did reveal that Deal sold a keg of beer at cost in violation of store policy—and that she carried on long and salacious phone calls with her boyfriend while store customers presumably listened and waited.

The Spearses fired Deal—first playing her a snippet of the tapes to explain their beef. The court held that the Spearses had violated the ECPA by taping and playing her calls and that warning her they might monitor the calls did not qualify as consent. (Deal v. Spears, 980 F.2d 1153 (8th Cir. 1992).)

Prying Into a McLove Affair

When Michael Huffcut and Rose Hasset became smitten with each other a few years ago, they also became what many couples in the first throes of romance are: sappy and careless. Huffcut worked as a regional supervisor at a McDonald’s in Elmira, New York. Hasset held a management-track position at a McDonald’s 60 miles up the road in Binghamton. When the two weren’t able to share happy meals together, they kept in touch by phone.

Harry Harvey, another McDonald’s manager, intercepted messages the lovers left on each other’s voice mail systems at work. He then relayed them to Fred Remillard, operator of a dozen of the fast food franchises, who directed Harvey, an alleged friend of the Huffcut family, to play the torrid tapes to Huffcut’s wife, Lisa.

That angered both of the Huffcuts. But when Michael complained that his bosses were wrong to spy on him, he was fired.

Michael and Lisa Huffcut each sued McDonald’s for $1 million, claiming, in addition to a violation of privacy rights, that Remillard intentionally inflicted emotional anguish, embarrassment, and loss of reputation and income on them. McDonald’s defended that there was a legitimate business purpose behind the monitoring—and that Huffcut had no reasonable expectation of privacy in his voice mail, since he should have known it might have been monitored.

Unfortunately for those hoping for some legal guidance on the boundaries of workplace eavesdropping rights, the case did not make it to court.

The Huffcuts and McDonald’s reached an out-of-court settlement in March 1996, the terms of which remain undisclosed. Their lawyer coyly admitted only that: “The case has been resolved to the satisfaction of Mr. and Mrs. Huffcut.”

There is no shortage of happy endings to the story. Rose Hasset was recently promoted to store manager.

2. Voice Mail

Much business communication these days takes place through messages left on voice mail systems—and the ECPA appears to protect them. It states that an employer may be liable for obtaining, reading, disclosing, deleting, or preventing access to an employee’s voice mail messages that are in “electronic storage.” But given the true workings of voice mail systems, this clarifies little. It is not yet known, for example, whether the ECPA—widely denounced as an awkward and muddled piece of legislation—prohibits employers from listening to messages that employees have listened to but not deleted from their systems.

3. Computers

Nearly every workplace in America today conducts some part of its business on computers, and many businesses have become slavishly devoted to them. While hailed by many as timesavers and aids to efficiency, computers have lent a new murkiness to workplace privacy laws.

a. Computer Files

There still is no specific law controlling whether and when the files you create on a workplace computer are legally protected from others’ snooping eyes. In legal battles over the issue, employers who claim a right to rummage through employees’ computer files must show they have a valid business purpose for doing so. Employees often counter this by claiming that they had a valid expectation of privacy—a logical, reasonable belief that others would not retrieve and read the files.

A growing number of employers have attempted to clear up the question of what is and is not considered private about workplace computers by writing specific policies spelling out what is and what isn’t considered proper business use there.

b. Email

While it is unclear whether the Electronic Communications Privacy Act applies to voice mail messages, its application to electronic mail, or email, systems is murkier still. The Act, which originally served to limit wire-tapping, took effect in 1986, before business email systems became the commonplace animals they are today.

Questions of legality aside, the truth is that many employers now routinely monitor email messages that their employees send and receive. This is easy to do. Some email systems copy all messages that pass through them; others create backup copies of new messages as they arrive on the system servers. Workers who logically assume their messages are gone for good when they delete them are painfully surprised to learn they are wrong.

Technology has now turned on itself as more companies buy into the software and electronic surveillance systems that make it easier to monitor email spawned in an earlier age. In some situations, even the most stalwart privacy advocate can see that the forces behind the monitoring are legitimate—motivated by concerns over poor job performance, quality control, loss of trade secrets, and potential liability for sexual harassment and other discrimination claims.

Stories abound of those who abused email privileges at work—and got reprimanded or fired for offensive or overindulgent e-chatting. Courts called upon to decide claims that employers have violated workers’ privacy by prying into their email are still asked to weigh the reasonable expectation of privacy against the employer’s reasonable business justification.

Again, a growing number of companies have taken proactive measures by establishing written policies informing employees of acceptable use of email at work. They range from absolutist controls banning personal email on the job completely, to limiting it to reasonable use, to the rare but existing nod that email will not be monitored on the job. While there is still no overarching law on email privacy, bills drafted so far have focused on this notification feature.

c. Internet Use

The next gasp of complaints about employers monitoring computer use on the job is likely to settle on employees’ Internet habits. And some former employees have already felt the sting when hit with evidence of site surfing that is hard to pass off as work-related. For example, one fellow was recently fired on his third day of work at a large CPA firm after being confronted with company records that revealed repeated trips to a pornography website.

A growing number of employers are taking the draconian step of blocking employees’ access to home email and Internet sites they deem frivolous or without a sufficient work-related purpose, such as movie search and retail sites. Such filters are imperfect at best and often counterproductive at worst—barring access to sites the employee needs to complete a job task. But they are currently legal.

The wisdom quickly emerging is to save personal surftime for your home computer.

4. Mail

Whether or not an employee has the right to expect privacy in the mail he or she receives at work depends for the most part on company custom and policy. In most workplaces, one or more individuals routinely sort and distribute the mail—and most mailings related to work matters range from the boring to the mundane. An employer may inadvertently, or even purposely, open most such mail without incurring any legal liability.

However, sometimes mail arrives addressed to an individual worker that is also marked “Personal” or “Confidential”—or sometimes with the overkilling warning “Personal and Confidential.” An employer who opens such mail, or directs or sanctions another person in the workplace to do so, must usually have a compelling business reason to open it. If the employer cannot demonstrate a compelling reason—for example, that there was important, time-sensitive business information in the envelope, and the employee to whom it was addressed was on a month-long vacation—then the employer may be guilty not only of being rude, but of invading the addressee’s privacy.

5. Audiotaping and Videotaping

As the number of lawsuits over workplace disputes has grown, so has an alarming trend: Employers and employees intent on bolstering their claims have begun to record one another in the hope of capturing some wrongdoing on tape. There are a number of legal and practical problems with this approach to gathering evidence, however.

Federal law appears to allow any person involved in a conversation to tape it without the other person’s knowledge or permission—as long as the recording is not made for the purpose of committing a crime, such as extortion. But a number of state laws have much stricter controls—generally requiring that everyone involved must consent before a conversation or an action can be taped.

Although our guts might tell us the opposite, audiotapes and videotapes also have questionable value as trial evidence. Before any jury would be allowed to hear or see a tape of a workplace scene, the tape would have to satisfy many picky rules designed to qualify and disqualify trial evidence.

Also, in real life, tapes rarely run to script. They often come out garbled or unclear. And they rarely hold up well out of context. What may feel like a damning conversation in which your boss blatantly admits you were fired because of your age may sound very different to those who do not know your boss or you.

A final reality is that if you have any desire to keep your job, confronting your employer with a tape immortalizing some perceived transgression is not the way to convince him or her that you make a loyal asset to the company.

All warnings said, the fact that you have an incriminating tape may make your employer more likely to quickly settle a complaint you lodge. It may make an investigating agency such as the Department of Labor or Equal Employment Opportunity Commission take a closer look at your file. It may make an attorney more inclined to take on your case. But the tactic is just as likely to backfire. You are in the best position to evaluate whether recording a workplace confrontation or other incident may be your best shot at getting strong evidence for later negotiations or a lawsuit—or is more likely to help you lose your job.

Workplace Testing | Privacy Right

Ostensibly, prospective employers and employees want the same thing: to match the best person with the most fitting job. These days, there are a number of tests that purport to take the guesswork out of the process. Ploughing through the Information Age and into the Biotech Century, many employers are quick to welcome outside evaluations of an individual’s mental and physical fitness and integrity and to believe in their results—often at the risk of sacrificing individual privacy rights.

1. Medical Examinations

A number of insurers require employees to undergo medical evaluations before coverage will begin. Beyond, and often in addition to, that, employers may require specific physical and mental examinations to ensure a qualified workforce. However, there are strict rules on when those exams can be conducted and who can learn the results.

Courts have ruled that the constitutional right to privacy covers medical information and that honesty is the only policy when it comes to medical tests for prospective and existing employees. That is, employers must identify what conditions they are testing for—and get individual consent to perform the tests, first.

a. Examining Job Applicants

Employers may legally give prospective employees medical exams to make sure they are physically able to perform their jobs. However, timing is crucial. Under the federal Americans With Disabilities Act, or ADA covered employers cannot require medical examinations before offering an individual a job. They are, however, free to make an employment offer contingent upon a person’s passing a medical exam.

The ADA also requires your employer to keep your medical history and exam results in a file separate from your other personnel records. Only a few individuals have the right to see your medical file:

• a supervisor who needs to know whether your medical condition or health requires that you be specially accommodated within the workplace

• First Aid or medical personnel who need to administer emergency treatment, and

• government officials who are checking to be sure your employer is complying with the ADA.

During the course of a medical exam, a company-assigned doctor may ask anything at all about an applicant’s health and medical history. However, the final medical evaluation is supposed to include only a stripped-down conclusion: able to work, able to work with restrictions, not able to work.

b. Examining Existing Employees

Employees can be required to take a physical or psychological examination after they are hired only if there is a reason to believe they are jeopardizing the health and safety of the workplace. For example, several courts have opined that if an employee clearly appears to be homicidal or suicidal, then an employer may have the duty to require a psychological exam, or even inform coworkers of the condition, in the name of workplace safety.

Again, while an examining doctor or psychologist has freer reign to ask questions as part of the examination of these employees than of applicants, the final evaluation revealed to an employer is supposed to be succinct and free of detail: able to work, able to work with restrictions, not able to work.

2. Drug and Alcohol Testing

The abuse of alcohol and drugs such as cocaine has been widely publicized for many years—and many private employers now test for drug and alcohol use. The laws regulating drug abuse in the workplace and the testing of employees for such abuse, however, are relatively new and still being shaped by the courts. Currently, there is a hodgepodge of legal rules controlling drug testing—some in the Americans With Disabilities Act, some set out in specific state laws (see the chart below), and a number arrived at through court decisions.

Testing is an institution rather than an aberration in many workplaces these days. About 63% of major U.S. companies regularly test for drugs and alcohol, according to a 2004 poll by the American Management Association. Some of that is explained by the passage, in 1988, of the Drug-Free Workplace Act. (102 Stat. § 4181.) That law dictates that workplaces receiving federal grants or contracts must be drug-free or lose the funding, although it does not call for testing or monitoring workers.

Work-related drug tests take a number of forms. Analyzing urine samples is the method most commonly used, but samples of a worker’s blood, hair, and breath can also be tested for the presence of alcohol or other drugs in the body. Typically, state laws set out the testing methods that may or must be used. Many statutes provide for retesting, at the employee’s expense, if the initial results are positive.

Metabolics of illegal substances remain in urine for various periods: cocaine for approximately 72 hours, marijuana for three weeks or more. Detectable residues apparently remain in hair samples for several months.

a. Testing Job Applicants

In general, employers have the right to test new job applicants for traces of drugs in their systems as long as all of the following are true:

• The applicant knows that such testing will be part of the screening process for new employees.

• The employer has already offered the applicant the job.

• All applicants for the same job are tested similarly.

• The tests are administered by a state-certified laboratory.

Today, most companies that intend to conduct drug testing on job candidates include in their job applications an agreement to submit to such testing. If, in the process of applying for a job, you are asked to agree to drug testing, you have little choice but to agree to the test or drop out as an applicant.

b. Testing Existing Employees

There are a number of employees who, because of their specialized positions or type of work, can be tested more freely for drugs and alcohol use. For example, the Department of Transportation requires drug testing for some critical positions, such as airline pilots. In addition, courts have routinely approved random drug testing for employees with national security clearances, prison officers, employees at chemical weapons and nuclear power plants, and police officers. Note, however, that while many laws allow such employees to be tested, they do not require automatic discharges if the results are positive.

But there are some legal constraints on testing existing employees in most private employment jobs for drug usage. Companies cannot usually conduct blanket drug tests of all employees or random drug tests; the testing must usually be focused on an individual. In some cases where employers have tested for drugs without good reason, the employees affected have sued successfully for invasion of privacy and infliction of emotional harm.

However, the courts have generally ruled that companies may test for drugs among employees whose actions could clearly cause human injury or property damage if their performances were impaired by drugs, and in cases where there is good reason to think that the employees are abusing drugs. For example, a bulldozer operator who swerved the machine illogically through a field crowded with workers could be the legal target of drug testing.

And a legal secretary found slumped at her desk, unable to respond cogently to questions asked of her, was also considered fair game for a drug test.

c. Challenging Drug Tests

As an employee, you can always refuse to take a workplace drug test. But, if you are fired because of your refusal, you may have little recourse. Your employer needs only to show that he or she had good reason to believe that you were a safety hazard on the job or that you seemed unable to perform the work required. You would be placed in the untenable position of proving that your employer knew no such thing. You may, however, be able to win your job back if you can show that you were treated differently from other employees in the same position.

If you have been given a drug test and unfairly suspended or demoted because of it, your best bet may be to argue that the testers did not meet with the strict requirements for form and procedure set out in your state law. (See the chart below.) And note that employers are free to add safeguards to protect against specimen tampering—requiring those taking the test to remove their own clothing and don hospital gowns or providing a test monitor who checks the temperature of the urine and adds dye to toilet water, as examples. However, a modicum of discretion is required; while most courts have found it reasonable to have a monitor listen as a urine test is administered, a number have found it an unreasonable invasion of privacy for the monitor to watch.

In addition, many laws require employers to maintain workplace counseling and outreach programs before they can test employees. While most employers these days are too savvy to slip up on procedural details, many of the laws are so picky and detailed that it may be worth your while to wade through and see whether your test made the grade.

d. State and Local Drug Testing Laws

As mentioned, a number of state courts have set out rulings defining when and why drug tests may be given. Some recent examples:

• Two employees at an electronic equipment manufacturer, a truck driver and an editor of the company’s user manuals, challenged the company’s random drug testing program. A Massachusetts court found that the employer’s legitimate business interests justified the drug test of the driver, whose job involved safety and liability risks. However, the court held that testing the editor was impermissible and that the employee’s privacy interests outweighed the employer’s interests, because the company failed to show a sufficient connection between his job duties and any harms feared. It noted specifically that he did not have a security clearance at the company, nor did he work directly on matters of national security. (Webster v. Motorola, Inc., 637 N.E. 2d 203 (1994).)

• An employee was required to submit to a drug test when she was hired at a Denver car dealer. Nearly a year later, her employer informed her that it had overlooked the test result, which was positive for marijuana. When another test was inconclusive, she refused to take the test again and was terminated. A Colorado court held that the state did not have a clearly expressed employee right to refuse drug testing, rejecting the employee’s contention that the testing invaded her privacy. (Slaughter v. John Elway Dodge Southwest/AutoNation, 2005 Colo. App. LEXIS 35 (2005).)

• The city of Seattle required a preemployment urinalysis drug test for about half its positions. Several taxpayers challenged the constitutionality of this program, though none claimed to have applied to respondent for employment. A Washington court likened drug testing to a warrantless search that could not be justified merely by concerns of cost and efficiency. It noted that Seattle’s testing program was applied too broadly to positions, such as librarians and accountants, that did not implicate public safety issues. (Robinson v. City of Seattle, 102 Wn. App. 795 (2000).)

In addition, a number of states and several municipalities have laws that regulate workrelated testing for substance abuse. Those that do also specify the scientific procedures to which testing labs must adhere. And many of these laws provide ways of dealing with overbroad or abusive workplace drug testing that are simpler, quicker, and less expensive than filing a lawsuit. Some states also require companies to distribute to employees written policies on drug testing and rehabilitation.

3. Psychological Testing

A number of people who label themselves as Workplace Consultants claim they have developed several series of written questions—integrity tests—that can predict whether a person would lie, steal, or be unreliable if hired for a particular job. And a number of other alleged experts claim to have perfected personality tests that allow employers to tell in advance whether an individual is suited by temperament and talent to a particular position. Employers are drawn to these tactics because they seem to short-circuit the process of interviewing—and because they seem to promise some insight into an applicant’s personality, which can be tough to assess in an interview setting.

Psychological tests are not a new idea. They were first developed during World War I to help the military decide how to assign soldiers to various jobs. Some legal cutbacks to personality and psychological testing in the workplace began in the 1970s, when employers were banned from questioning prospective employees about age, race, or sex. The tests had a heyday again in the early ’90s, shortly after lie-detector screening was curtailed by law. And, today, legions of test publishers have cropped up online—most of which claim they can forecast everything from a potential employee’s likelihood of being honest and hardworking to his or her absence and injury rate on the job. And they promise an analysis fast—often within 48 hours of receiving responses to test questions. Critics say that is a suspiciously tall order to fill so quickly. And there may be legal pitfalls to the tests as well. Despite the doubts that surround them, however, the employee screening tests remain popular with many employers, most of whom claim to temper their acceptance with a dollop of skepticism and to cast about for information in more subtle ways.

Today’s prescreening questionnaires usually cover legally forbidden topics in roundabout ways. For example, employers may glean information about marital and family status by asking applicants to give information about hobbies and other interests. And many employers—about 40% of them, according to the American Management Association—use these questionnaires in the process of screening applicants for job openings. But even that temptation has been curbed of late by a number of cases that send a clear warning: Psychological tests cannot be used as an excuse to discriminate against prospective employees—and they must be limited to job-related questions.

A few states have enacted laws against some specific forms of psychological testing. In New York, for example, employers may not require that job applicants or employees take psychological stress evaluator tests. (N.Y. Lab. Code §§ 733 to 739.)

4. Lie Detector Tests

For decades, lie detectors, or polygraphs, that purport to measure the truthfulness of a person’s statements by tracking bodily functions such as blood pressure and perspiration, were routinely used on employees and job applicants.

Employers could—and often did—ask employees and prospective employees questions about extremely private matters such as sexual preferences, toilet habits, and family finances, while a polygraph machine passed judgment on the truthfulness of the answers. Push the machine’s needle too far by reacting to an offensive question and you could be labeled a liar and denied employment.

The federal Employee Polygraph Protection Act (29 U.S.C. § 2001), passed in 1988, virtually outlawed using lie detectors in connection with employment. That law covers all private employers in interstate commerce, which includes just about every private company that uses the U.S. mail or the telephone system to send messages to someone in another state.

Under the Act, it is illegal for all private companies to:

• require, request, suggest, or cause any employee or job applicant to submit to a lie detector test

• use, accept, refer to, or inquire about the results of any lie detector test conducted on an employee or job applicant, or

• dismiss, discipline, discriminate against, or even threaten to take action against any employee or job applicant who refuses to take a lie detector test.

The law also prohibits employers from discriminating against or firing those who use its protections.

While government employees are not protected by this law, they are generally protected from lie detector tests by civil service rules.

a. When Lie Detector Tests Can Be Used

The Employee Polygraph Protection Act allows polygraph tests to be used in connection with jobs in security and handling drugs or in investigating a specific theft or other suspected crime. However, before you can be required to take such a test as part of an investigation of an employment-related crime, you must be given a written notice, at least 48 hours before the test, stating that you are a suspect. And there must be a provable, reasonable suspicion that you were involved in the theft or other conduct triggering the investigation.

The Act does not apply to employees of federal, state, or local government, nor to certain jobs that handle sensitive work relating to national defense.

b. Limitations on the Tests

In addition to the strict strictures on when and to whom the tests may be given, there are a number of restrictions on their format. Before a lie detector test can be administered, your employer must read to you and ask you to sign a statement that includes:

• a list of topics you cannot be asked about, including questions on religious beliefs, sexual preference, racial matters, lawful activities of labor organizations, and political affiliation

• information on your right to refuse to take the test

• the fact that you cannot be required to take the test as a condition of employment

• an explanation of how the test results can be used, and

• an explanation of your legal rights if the test is not given in keeping with the law.

While the test is being administered, you have the right:

• to stop it at any time, and

• to be asked questions in a way that is not “degrading or needlessly intrusive.”

When the test is said and done, results can be disclosed only to the employer who ordered the test, the employee who was tested, a court or government agency, or an arbitrator or mediator if there is a court order. The law specifically prohibits prospective employers from getting access to old test results.

c. How to Take Action

The Employee Polygraph Protection Act is enforced by the U.S. Department of Labor. If you have questions about whether the Act applies to your job or if you suspect that you have been subjected to illegal polygraph testing, call the office of the U.S. Labor Department’s Wage and Hour Division nearest you. It is listed in the federal government section of the telephone directory under Labor Department.

There is no official form for filing a complaint. If, after discussing your situation with a Wage and Hour Division investigator, you decide to file a complaint, do so as soon as possible by writing a letter addressed to your local Wage and Hour Division office. Include such details as the name and address of the employer, when the incident occurred, and the address and telephone number where an investigator can reach you. And keep a copy of your letter for your records.

If the Labor Department finds that your rights under the Act were violated, it can fine the employer up to $10,000 and issue an injunction ordering the employer to reinstate you to your job, promote you, compensate you for back wages, hire you, or take other logical action to correct the violation.

If the Labor Department’s action on your complaint does not satisfy you, you can file a lawsuit against the employer to obtain whatever compensation or other remedy would be appropriate. Move quickly, because the lawsuit must be filed within three years. You will probably need to hire an attorney to help you if you decide to file a lawsuit under this Act.But the law allows the court to grant you attorneys’ fees and other costs if you win.

d. State Laws on Lie Detector Tests

Some states have laws prohibiting or restricting employers from using lie detectors in connection with employment, but most have been made obsolete by the federal antipolygraph statute. Some states go farther and prohibit employers from even suggesting such a test.

In addition, state coverage may be broader; while the federal law does not apply to state and local government employees, many of the state statutes do.

Note that the laws in several states provide that an employee who volunteers to take a lie detector test may be given one. But such laws have safeguards, requiring that the tests be administered under approved and supervised conditions and that employees be clearly informed about how and why test results may be used.

5. AIDS Testing

The disease of Acquired Immune Deficiency Syndrome (AIDS) was first identified in 1981. Fairly early on, researchers isolated its viral cause, the Human Immunodeficiency Virus (HIV), which suppresses the immune systems of those who carry it, making them easy targets for various other infections and diseases. Since then, while great strides have been made in treating AIDS symptoms, there still is no cure. Many of those who have the HIV infection live nearly symptom-free. But, ultimately, the disease is still considered fatal—and is spreading.

The impact on American workplaces has been and will continue to be enormous. Not only have hundreds of thousands of workers died, most of them suffered also from the reactions of others—irrational fear and ostracism—that play in tandem with the AIDS epidemic: AFRAIDS. Many workplaces responded to the hysteria with more hysteria, developing intrusive policies of isolating workers suspected to have the disease.

Another offshoot of this hysteria is the practice of testing employees for the HIV virus. While a number of courts have struck down state and local efforts to screen employees for HIV, the practice continues in many workplaces.

a. Types of Tests

Although medical researchers may develop more methods of testing for the HIV virus, the test first approved for commercial use by the Food and Drug Administration in 1985 is still in use today. Basically, the test measures antibodies in the blood that are stimulated by the HIV virus. If a test is positive, indicating exposure to the deadly virus, a confirmation test is usually performed that uses a more complicated system of weighing molecular weights found in the blood.

However, there are a number of things the HIV antibody testing does not indicate. Tests do not identify people who have AIDS. AIDS is defined by the Centers for Disease Control (CDC), and the definition is still evolving. Currently, an individual is considered to have AIDS if he or she has any of the AIDS-related diseases specified by the CDC and has a T-count—or number of infection-fighting white corpuscles—of less than 200 in a cubic milliliter of blood.

Also, tests do not identify every person carrying the AIDS virus. The tests are aimed at measuring the antibodies stimulated by HIV, so they do not work effectively on individuals who have been exposed to the virus but have not developed antibodies to it—a period which usually takes about eight weeks, but may take up to a year or more.

b. Legal Controls on Testing

Originally, HIV blood tests were fashioned to screen blood, not people. But when prospective employees and employees are subjected to testing, the reality is that people are being screened—and sometimes labeled as unfit workers.

A federal law, the Americans With Disabilities Act, prohibits testing job applicants to screen out people with HIV or AIDS. Once an applicant is offered a job, however, the legal constraints on testing become a bit murkier. To avoid singling out any individual or group, which would be illegal discrimination, an employer would have to test all employees. Even then, to justify giving employees an HIV test, an employer would have to show that the test is necessary to determine whether applicants are fit to hold a job. This would be nearly an impossible task, as many people infected with HIV show no symptoms of ill health.

Most states have laws setting some controls on employers’ uses of HIV tests. Test results may not be used to determine suitability for insurance coverage or employment according to the laws in a number of states, including Florida. (Fla. Stat. § 381.004.) And Massachusetts bans employers from requiring employees to take a test as a condition of employment. (Mass. Gen. Laws ch. 111, § 70f.)

In addition, a number of cities have enacted ordinances that put additional limits on how and when employers may test for HIV and AIDS. A strict law in San Francisco, for example, states that employers cannot test for AIDS unless they can show that the absence of AIDS is an essential employment qualification. (San Francisco Police Code §§ 3801-16.)

This area of the law is changing very rapidly. Double check your local, state, and federal law for recent changes. A local clinic, support group, or AIDS hotline may be able to provide you with the most up-to-date local information. A number of organizations also offer information on the HIV virus, AIDS, and resources on AIDS in the workplace.

Your Personnel Records | Privacy Rights

Your employer is required by law to keep some tabs on you—including information on your wages and hours, workplace injuries and illnesses, and tax withholding, as well as records of accrued vacation and other benefits. That information is usually gathered together in one place: your personnel file. Your file will usually contain little information you did not know or provide to your employer in the first place.

But personnel files can sometimes become the catch-alls for other kinds of information: references from previous employers, comments from customers or clients, employee reprimands, job performance evaluations, or memos of management’s observations about an employee’s behavior or productivity. When employment disputes develop, or an employee is demoted, transferred, or fired, the innards of his or her personnel file often provide essential information—often unknown to the employee—about the whys and wherefores.

A federal law, the Privacy Act (5 U.S.C. § 552a), limits the type of information that federal agencies, the military, and other government employers may keep on their workers.

However, private employers have a nearly unfettered hand when it comes to the kind of information they can collect. While many states now have some type of law regulating personnel files (see the following chart), most of these laws control not the content of the files, but:

• whether and how employees and former employees can get access to their personnel files

• whether employees are entitled to copies of the information in them, and

• how employees can contest and correct erroneous information in their files.

1. Getting Access to Your File

The best way to find out what a company knows about you, or what it is saying about you to outside people who inquire, is to obtain a copy of the contents of your personnel file from your current or former employer.

In some states, the only way you get to see those files is while collecting evidence after filing a lawsuit against the employer or former employer. And even then you might be in for a legal battle over what portions of the files are relevant to the case. But, in many states, you have the right to see the contents of your personnel file—or at least some of the documents in it—without filing a lawsuit.

State laws on employee access to personnel records generally cover technical matters, such as when your request must be made and how long the employer has to respond. Before you request your file, read the law on procedures for your state. In general, you must make your request to see your personnel files in writing to your employer or former employer as soon as you decide that you want to see them. If you send your request by certified mail, you will be able to prove when the request was submitted, should you need that evidence later.

If you live in a state that does not have a specific law ensuring you access to your personnel records, all is not lost. If you wish to see and copy your personnel files, ask to do so. If you meet with resistance, make a more formal request in writing. If that request is denied, and you genuinely believe your records may contain information that is critical to your position, you may need to consult with an expert such as a private investigator or experienced attorney.

2. Criminal Records

According to recent statistics collected by the Bureau of Justice, approximately one-third of the workforce has a criminal record, most commonly including theft. Despite this high proportion of workers with criminal records, many feel they are approached with wariness, or even subjected to abject discrimination, by employers who learn of their histories.

Arrest and conviction records are public records available to anyone, including an employer, who has the wherewithal and incentive to search for them. These records are also kept by a number of agencies—including police, prosecutors, courts, the FBI, probation departments, prisons, and parole boards. These record keepers are theoretically barred from releasing this information to anyone other than other criminal justice agencies and a few types of specialized employers (those who help manufacture controlled substances or run child care or elder care facilities for example.) In reality, however, slips of the tongue are made and persistent employers can generally find the ways and means to get their eyes on the information.

Most states now have laws that specifically bar employers and prospective employers from getting access to records of arrests that did not lead to convictions. And a growing number of states forbid employers from even asking job applicants about such arrests. But some states, including Hawaii and Wisconsin, expressly allow employers to inquire about past convictions that have rational relationships to the specific job the applicant seeks—a theft conviction, for example, for any person who has access to the company coffers.

Still, there are many exceptions to this Don’t Ask, Don’t Tell rule for specific categories of workers, including most bank employees, securities industry and commodities workers, and nuclear power employees.

Also, states are especially mindful of an employer’s need and right to do thorough background checks when employees and volunteers will be working closely with children or adults who are ill or elderly and may be considered vulnerable. Many statutes specify that those working in schools, adult care homes, nursing homes, home care agencies, and facilities for those with mental and physical disabilities may—and often must—be subjected to criminal background checks before being allowed on the job.

Connecticut stands alone in offering employers overt statutory encouragement to hire qualified applicants who have criminal records.

Whatever the state of the law, the reality is that employers customarily bend and trample on the rules against asking about former arrests and convictions. And, in most states, private employers can check—and are often duty-bound to check—the conviction records of prospective employees. Since most records of criminal convictions are freely open to the public, there is usually little a job applicant or employee can do to stop an employer from discovering them.

3. Medical Records

Medical information about employees comes into the workplace a number of ways. It is volunteered by an employee who is calling in sick. It becomes general knowledge after filtering through the gossip mill. It is listed on the insurance application for a group policy, which your employer will likely have on file.

As a general legal rule, employers are not supposed to reveal medical information about employees unless there is a legitimate business reason to do so. Again, that nebulous standard, so often used as a fall back in workplace controversies, provides little guidance because it is so poorly defined.

In an attempt to curb witting and unwitting leaks of medical information in the workplace, the Americans With Disabilities Act, or ADA—the broad federal law prohibiting disability discrimination on the job—imposes strict requirements on how and where employers must keep medical information on employees.

Under the ADA, medical information must be kept separate from nonmedical information in a secure location—and access to it should be limited to a designated individual.

The law also limits those entitled to learn about medical information in the workplace to:

• supervisors of employees whose work duties are limited or who require some accommodation because of a medical condition

• first aid and safety workers who may need to administer emergency treatment or respond during an evacuation, and

• government and insurance officials who require the information for official business purposes.

Still, despite the confidentiality measures imposed by the ADA, information leaks and abuses still occur. If you are concerned about keeping your medical information confidential and out of the workplace limelight, you must take active steps to do so. If you confide any medical information about yourself to coworkers, ask them not to tell others. Inform all doctors who treat you that they should not reveal anything about your health or treatment to another person without getting a release, or written permission, from you first.

4. Credit Information

This era of the computer is also the era of the ever-present personal credit rating. Credit bureaus—profit-making companies that gather and sell information about a person’s credit history—have become a booming business. And the growing power and popularity of the computerized credit rating has found its way into the workplace, as well.

Many employers now use the same credit bureau files used by companies that issue credit cards and make loans to do routine credit checks on employees and job applicants. Unfortunately, there is very little you can do to prevent employers from evaluating your credit history in deciding whether to hire, promote, or even continue to employ you.

a. Employers’ Access to Your Record

A federal law, the Fair Credit Reporting Act (15 U.S.C. §§ 1681 and following), requires credit agencies to share their data only with those who have a legitimate business need for the information, and employers generally qualify. Employers are given broad access to an individual’s credit report, which they can use to evaluate eligibility for “employment, promotion, reassignment, or retention.” In short, as far as your employer or prospective employer is concerned, your credit rating is an open book.

Credit bureaus typically track not only your bill-paying habits, but also all companies that have asked to see your credit rating when you apply for credit, insurance, a place to live, or a new job. The result is that employers increasingly use credit bureau files to find out whether an employee is job hunting with other companies. And prospective employers may use a shaky credit report to conclude that it is risky to welcome you aboard.

However, an amendment to the Fair Credit Reporting Act gives you some rights to know how and whether a current or prospective employer is using credit information about you. It requires an employer to get your written permission before peeping at your credit report. And the words granting permission can’t be buried deep within a job application form or other word-laden document; you have to sign separately to signal your approval.

While this sounds like strong stuff at first, the truth is that, if you refuse to give approval to the employer’s wondering eyes, you will leave the impression that you have something to hide—and that will likely kill your chances for getting or keeping the job.

Also, the amendment mandates that a prospective employer who rejects you for a job based “in whole or in part” on an item on your credit report must give you:

• a copy of the report before turning you down, and

• written instructions on how to challenge the accuracy of that report.

Again, while this smells at first whiff like strong consumer protection, the reality is that it is tough to track whether employers have followed the letter of the law. They remain free to claim that you were turned down for reasons entirely separate from the harsh marks on your credit report.

b. How to Take Action

Amendments to the Fair Credit and Reporting Act at least theoretically give you some idea of whether you are up against an employer marauding for credit information that might cause you to lose out on a job.

And an employer who uses your credit information against you is not only supposed to fess up to it, but must also give you the name, address, and telephone number of the credit agency that provided the report about you. You are entitled to a free copy of the report from that agency.

You also have the right to correct any errors in credit reports compiled about you, and most experts recommend that you check and correct your file every few years, especially if you will be job hunting or applying for credit.

Call the nearest office of the Federal Trade Commission, listed in the federal government section of the telephone directory, for guidance on how to correct the report, or check the FTC’s website, at www.ftc.gov. If you suspect a misuse of your credit report, you may want to contact your state consumer protection agency or attorney general to see whether state laws give you additional avenues for action.