Worksite Privacy from Social Networking to Social Security

Happy Holidays to all our readers from the Advisor Team: Amanda, Chelsea, Kate, Rafael, and Steve!

[Go here for privacy issues 1 to 4.]

5. Social Networking Sites

Employees have increasingly been utilizing social networking sites for a variety of uses, both personal and professional. Although these sites can be beneficial, their use can also have risks, such as the following:

• Discrimination. By viewing candidate profiles, employers may learn more information (e.g., race, disability, age, religion, family/marital status, sexual orientation) than the employer could legally ask about directly.
• Background check laws. It is unclear whether the federal Fair Credit Reporting Act (FCRA) and some state laws would require consent from an applicant before an employer or third party conducted an Internet search as part of a background check. However, even if not legally required to do so, employers should consider getting consent so that applicants are on notice that the information they post on social networking sites may be reviewed by the employer.
• Monitoring employee use of social networking sites. There is little case law addressing employers monitoring employees’ social networking posts. However, the few cases in this area suggest that courts will be reluctant to uphold an invasion of privacy claim—whether based on the U.S. Constitution or state common law—when an employee voluntarily posts information on a public site.
• Right to organize. Another possible concern for employers that monitor employee use of social networking sites is the National Labor Relations Act (NLRA), which protects employees’ right to engage in a concerted activity regarding terms and conditions of employment.

6. Social Media/Personal Internet Account Privacy

After news media reports that some employers were requiring job applicants and existing employees to provide access to their social media accounts, many state and federal lawmakers have proposed (and several states have passed) legislation to ban this practice.

7. Genetic Information

The Genetic Information Nondiscrimination Act (GINA) prohibits employers from discriminating against employees or applicants on the basis of genetic information. The law applies to all public employers, private employers with 15 or more employees, employment agencies, and labor organizations.

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8. Medical Information

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) created national standards to protect individuals’ medical records and other personal health information and to give patients more control over their health information.

9. Alcohol and Drug Testing

Many employers maintain drug- and alcohol-free workplaces. Note that state and federal law may limit or regulate the employer’s ability to do drug testing and, if tests are permitted, to maintain the privacy of results in a specified manner.

10. Legal and Recreational Activities Outside the Workplace

As noted earlier, many states have enacted laws protecting employees from adverse employment action based on their lawful conduct outside the workplace.

11. Social Security Numbers (SSNs)

In an effort to thwart the growing tide of identity and credit theft cases, a number of states have passed legislation governing the manner in which employers and other individuals handle SSNs.

Privacy issues—a bigger and bigger challenge for all compensation and benefits managers. “Maintain internal equity and external competitiveness, control turnover, provide competitive benefits, but still meet management’s demands for lowered costs.” Heard that before?

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