Privacy in the Workplace FAQ

Can you run a background check, use an employment test, or check up on employees' activities on or off the job?

Can I fire a worker whose personal beliefs clash with mine?

You may not fire a worker because of his or her religious or political beliefs. Federal and state laws protect workers from this type of discrimination. However, if a worker brings those beliefs into the workplace by, for example, proselytizing to coworkers despite their requests to stop or arguing over politics during work time, you may put a stop to this.

For more information, see Nolo's article Monitoring Employees' Off-Duty Conduct.

Can I read my employees' email messages?

Generally yes, although it may depend on your policies. If you have a policy of email privacy (for example, if you tell your employees that their email will be confidential or will not be read by the company), then you should abide by that policy. Also, if you allow employees to designate certain messages as confidential or private, you probably shouldn't read the messages so designated unless employees are on notice of this possibility. Otherwise, however, you have the right to monitor employee email, as long as you have a legitimate business purpose for doing so.

For more information, see Nolo's article Email Security Policy: Why You Need One for Your Employees.

Can I monitor my workers' phone calls to make sure they are properly serving my customers?

Yes, with a few limitations. You are legally allowed to monitor employee conversations with customers for quality control. Federal law allows you to do so without warning or announcement, although some states require you to inform the parties to the call in some way that you are listening. However, you may not monitor personal calls. You must stop monitoring once you realize that a particular call is personal.

For more information, see Nolo's article Monitoring Employee Communications.

Can I randomly search my employees as they leave the workplace to minimize theft?

This is usually a bad idea. Generally, you can perform a workplace search in order to serve important, work-related interests, as long as you don't unduly intrude on your workers' privacy rights. Random searches are less likely to pass legal muster than a search of a particular employee whom you reasonably suspect of theft. And even if you have a reasonable suspicion, you must not search too invasively: Although searching an employee's bag might be reasonable under some circumstances, searching the employee's body crosses the line.

For more information, see Nolo's article Workplace Searches.

What are the rules for handling employee medical records?

A number of laws, including the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and the Health Insurance Portability and Accountability Act, require employers to maintain the confidentiality of employee medical records. These records must be kept in separate, secure files, with access strictly limited. For more information, see Nolo's article Keeping Personnel Files and Medical Records Confidential.

Can we fire an employee for criticizing managers on Facebook?

It's probably not a good idea. The National Labor Relations Act (NLRA) prohibits employers from retaliating against employees for communicating with each other about the terms and conditions of their employment. And, this protection extends to communications online as well as those made in person or by other means. Recently, the National Labor Relations Board has filed complaints against two employers that disciplined employees for making critical comments about managers and the company on Facebook and Twitter. To learn more about what you can and can't do in response to employee's online posts, see Nolo's article Employee Posts on Facebook, MySpace, Twitter, and Blogs.

Can employees post reviews of company products on websites like Amazon and Yelp?

Only if they disclose that they are employees of the company. The Federal Trade Commission has issued rules that require product endorsers to be clear about their connection to the company that makes the product. For example, if a company sends out free product samples to bloggers, in the hope that they will rave about the product, the bloggers must disclose that they received the product free. Similarly, employees must reveal their employment relationship whenever they review or endorse their employer's products. The purpose of these rules is to allow consumers to make an informed decision about how much weight to give a particular endorsement. For more information on these rules, as well as sample policy language you can use at your company, see Nolo's article Employees' Online Endorsement of Company Products.

Can I install cameras in the workplace to discourage employee misconduct?

It depends on where you want to put the cameras, and why. You must have a reasonable basis for monitoring in this manner (to discourage theft from a cash register and enhance the security of customers, for example) and inform your employees of the cameras. Certain areas of the workplace (the bathroom or changing areas, for example) are generally off-limits to this type of monitoring.

For more information, see Nolo's article Workplace Cameras and Surveillance: Rules for Employers.

To Learn More

For a complete guide to your legal rights and responsibilities as an employer, get The Employer's Legal Handbook: Manage Your Employees & Workplace Effectively, by Fred Steingold (Nolo), which shows you how to comply with the most recent workplace laws and regulations, run a safe and fair workplace, and avoid lawsuits.

Can I require all employees that I am considering for management positions to take a psychological test?

Although this is an unsettled area of law, it might depend on the test. Many widely used psychological tests ask questions that invade the test-taker's privacy. And the jury is still out as to whether these tests have any ability to predict whether a particular employee will lie, steal, manage poorly, or cause other workplace problems. Because of these limitations, it's a good idea to talk to a lawyer before imposing a testing requirement.

For more information, see Nolo's article Testing Employees.

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