CIPP-U.S. - Chapter 12

Equal Employment Opportunity Commission

created to enforce the Civil Rights Act of 1964, which forbids discrimination on the basis of race, creed, national origin, religion, or sex in hiring, promotion, or firing.

FCRA -Preemption

FCRA does not preempt states from creating stronger legislation in the areas of credit history checks. FACTA (Fair & Accurate Credit Transactions Act) preempted many state laws on credit reporting and identify theft. Specifically left California Consumer Investigative Consumer Reporting Agencies Act (ICRAA) intact.

FCRA v. ICRAA - Consent

FCRA is more lenient: - allows employers to use the single, first consent for all subsequent requests - Consent only required if the check is done through a CRA ICAA: - requires consent before every background check - Must disclose any public records resulting from an in-house background check unless the employee waives that right (except in-house reference checks)

Substance Use Testing: reasonable suspicion

Generally allowed as a condition of continued employment if there is "reasonable suspicion" of drug or alcohol use based on specific facts as well as rational inference from those facts (e.g. appearance, behavior, speech, odors.)

Substance Use Testing: routine testing

Generally allowed if employees are notified at time of hire, unless state or local law prohibits its.

Substance Use Testing: pre employment

Generally allowed if not designed to identify legal use of drugs or addition to illegal drugs

Substance Use Testing: post-accident testing

Generally allowed to test as a condition of continued employment if there is "reasonable suspicion" that the employee involved in the accident was under the influence of drugs or alcohol.

Fair Trade Commission

Protects consumers' right to attain, use, and maintain credit by monitoring and enforcing credit laws

FCRA (Fair Credit Reporting Act)

Protects the privacy of background information and ensures that the information supplied is accurate. Notice requirements on employers that rely on consumer background reports and other background checks obtained from a CRA.

Privacy issues after employment

Departure of employees is a predictable event, policies must exist to address: - Access to physical and information assets - create clear procedures for terminating access - HR - employee files, references, etc.

Screening with AI

Employers should be aware of algorithm bias.

Federal Laws addressing employee privacy

- Anti-discrimination laws - Medical data laws (HIPAA, ERISA, FMLA) - Data collection and record keeping (FCRA, CRA, FLSA, OSHA, NLRA) - Surveillance laws (Polygraph Act, ECPA, SCA)

Investigation of employee misconduct: best practices (5)

- Avoid loss or liability due to failure to take allegations - Treat employees with fairness in the investigation - Follow laws and corporate practices in the investigation - Document alleged misconduct and the investigation - Consider the rights of people other than those being investigated

Regulatory bodies protecting employee privacy

- Department of Labor - Equal Employment Opportunity Commission - Fair Trade Commission - Consumer Financial Protection Bureau - National Labor Relations Board

Monitoring in the workplace: reasons (6)

- Follow workplace safety - Protect physical security (e.g. cctv) and cybersecurity - Protect trade secrets - Limit liability for the unlicensed transmission of copyrighted material or confidential information - Improve work quality (e.g. monitoring calls) - Keep employees on task

EPPA (Employee Polygraph Protection Act)

- One of few federal workplace protections. - Essential provisions of the act must be conspicuously posted in the workplace - Enforcement: violation may result in fines from DOL and private lawsuits. - State laws not preempted

Privacy issues pre-employment

- Screening - Accessing information under the FCRA - Criminal background checks (particularly if the job is which children, elderly, disabled, government, military, medical, gaming) - Identity verification - Business scandals - Online presence EEOC cautions that background checks should seek information relevant to the job and business necessity. Careful screening can help defeat claims of negligent hiring.

Substance Use Testing: random testing

- Sometimes required by law - Prohibited in certain jurisdictions - Acceptable where used on existing employees in narrowly defined jobs such as those in highly regulated industries where the employee has a severely diminished expectation of privacy or where testing is critical to public/national safety.

ADA - Conditioning employment on a medical exam is permitted if

1. All entering employees are subject to the exam 2. Confidentiality rules are followed for the results 3. Results are used only in accordance with statutory prohibitions against discrimination.

Investigation of employee misconduct: FACTA

.FACTA amended the FCRA so that a report from an outside firm hired to conduct an internal investigation, the employer need not provide notice. Specifically, FACTA amended the definition of a consumer report to exclude communications relating to employee investigations if: 1. The communication is made to an employer in connection with the investigation of i) suspected employment misconduct, ii) compliance with federal, state, or local laws, rules of a self-regulated organization, or preexisting employment policies; 2. The communication is not for the purpose of investigating creditworthiness, credit standing, etc. and dos not include information pertaining to those factors; and 3. The communication is not provided to anyone except i) the employer/its agent, ii) a federal or state officer, etc., iii) a self-regulated organization with authority over the activities, iv) as otherwise required by law, or v) pursuant to 15 U.S.C. 1681f (addresses disclosure to government agencies).

ICRAA Requirements for employers to use investigative consumer reports

1) Investigative CRs require separate (to regular CR notice) written disclosure before the report is obtained 2) Written disclosure must state: - that the report may be obtained - the permissible purpose of the report - The fact that the disclosure may include info on the subject's character, reputation, lifestyle, etc. - Contact information for the Investigative CRA (name, address, phone, website) - Whether the information will be sent outside the U.S.

ICRAA Requirements for employers to use consumer reports

1) Notify applicants and employees of intent to use consumer reports 2) Obtain written authorization prior to requesting the report. 3) On the notice form, enable subjects to check a box to receive a copy of the CR any time a background check is conducted. 4) If adverse action is taken, the subject must be provided with a copy of the report regardless of whether they waived their right to receive a copy. (This does not apply to employees suspected of wrongdoing.

Privacy Issues During Employment - Substance Use Testing: uses (5)

1) Reduce costs resulting from lowered productivity, accidents, and absenteeism 2) Reduce medical care due to drug use 3) Reduce theft or other illegal activity in the workplace 4) Bolster corporate image 5) Comply with external rules

FCRA Requirements for employer use of consumer report. (6)

1) Written notice to the applicant, and indicate if it is an investigative consumer report 2) Written consent from the applicant 3) Obtain data only from qualified CRAs (who take steps to ensure accuracy and currency) 4) Certify to the CRA that a permissible purpose and consent exist 5) Before taking adverse action based on the report, provide notice to the applicant with a copy of the report and give an opportunity to dispute 6) After taking adverse action, provide adverse action notice.

Tort law protection for employees

1. Intrusion upon seclusion 2. Publicity give to private life 3. Defamation

Consumer Financial Protection Bureau

A regulatory agency charged with overseeing financial products and services that are offered to consumers.

Investigative consumer report (FCRA definition)

A report in which some of the information is acquired through interviews with neighbors, friends, associates, etc.

Data Loss Prevention (DLP)

A system that can identify critical data, monitor how it is being accessed, and protect it from unauthorized users.

Consumer report (FCRA definition)

All written, oral, or other communications bearing on the consumer's creditworthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living. E.g. credit report, driving history report, reports from data aggregators.

State laws limiting background screening

Almost half of states prohibit sexual preference discrimination, while others only prohibit it in public workplaces. Roughly half of states prohibit discrimination based on martial status.

Contract law protection for employees

Employees can obtain rights through their employment contract and through collective bargaining. Unions have often negotiated limits on drug testing and monitoring.

BYOD (bring your own device)

Employees may increasingly use personal devices and equipment for work purposes. Issues: - Security challenges - Privacy BYOD policies should clearly address these issues and convey to employees the privacy limitations and risks of using personal devices for work.

Americans with Disabilities Act

Bans employers with 15+ employees from discriminating against qualified individuals on the basis of a disability. Specifically identifies "medical examinations and inquiries" as grounds for discrimination, except where "job-related and consistent with business necessity." Employers may not ask about prior work injuries or illnesses, compensation claims, etc. Psychological tests may qualify as medical exams.

Monitoring in the workplace: video surveillance

Cameras and video recording that does not have sound is outside the scope of federal wiretap and stored-record statutes. Video recording may be prohibited in certain areas by state law, e.g. changing rooms, restrooms, locker rooms, and other "private places."

FCRA Penalty for failure to meet requirements for use of consumer reports.

Civil penalty (private right of action) Criminal penalties

Substance Use Testing: fourth amendment

Considerable protection for public sector employees about when such tests are reasonable.

Department of Labor

Deals with working conditions, wages of U.S. workers

FCRA v. ICRAA - Disclosure

Disclosure requirements are more stringent under the ICAA

Lifestyle discrimination: weight

Discrimination based on weight is prohibited under the ADA, a person 100+ lb overweight is protected.

Screening with social media

Employers should be alert that the FCRA applies to non-traditional sources of background check information.

ADAAA - Americans with Disabilities Act Amendments Act (ADA Amendments Act)

Expanded the scope of ADA protections by broadly defining disabilities to include conditions that are mitigated, in remission, or episodic, if they would substantially limit a major life activity of an employee when active or absent mitigation.

Monitoring in the workplace: postal monitoring

Federal law generally prohibits interference with mail delivery. Mail is considered delivered when it reaches a business. Employers should advise employees not to receive personal mail at work, declining to read mail once the personal nature is made clear, and maintaining confidentiality.

Federal antidiscrimination laws limiting background screening

Federal laws: - Title VII - bars discrimination on protected characteristics - Equal Pay Act - bars wage discrimination based on sex - Age Discrimination Act - bars discrimination against 40+ - Pregnancy Discrimination Act - bars discrimination based on childbirth etc. - ADA -bars discrimination based on qualified disabilities - GINA - bars discrimination based on genetic information - Bankruptcy Act 525(b) - bars discrimination based on filing for bankruptcy These laws not only bar discrimination in hiring decisions but also affect the interview/application process.

Monitoring in the workplace: stored communications

Generally, employers may look at workers' electronic communications if the reason is reasonable and work-related. The SCA creates a general prohibition against the unauthorized acquisition, alteration, or blocking of electronic communications while in electronic storage in a facility through which an electronic communications service is provided. Exceptions relevant for employers: 1) Bt the person or entity providing a wire or electronic communications service 2) By a user of the service with respect to a communication of or intended for that user. Violations can result in civil or criminal lawsuits.

Fourth amendment limitations

Government employers may be limited.

ADA reasonable accommodation

If an employee with a disability can perform the job with reasonable accommodation, without undue hardship on the employer, the accommodation must be made. Examples: wheelchair ramps, flexible working hours, improved training materials. Business may not ask applicants whether an accommodation is needed, unless the employer knows of a disability. After a conditional offer, the employer may inquire as to the need for an accommodation, so long as all entering employees in the job category are asked this question.

National Labor Relations Board

Independent agency charged with mediating disputes between management and labor unions, and overseeing unionization efforts.

Publicity give to private life

Liability exists where the matter publicized a) is the kind that would be highly offensive to a reasonable person and b) is not of legitimate concern to the public. Must show a relatively broad dissemination of the information. First amendment often provides defense.

Monitoring in the workplace: location based services

Monitoring employee location may be permitted provided that the monitoring occurs for business purposes, during work hours, and employees have been informed beforehand.

Lifestyle discrimination: smoking

Not protected federally, but half of the states have protections prohibiting employers from discriminating based on smoking outside of work.

Substance Use Testing: ADA

Prohibits discrimination based on disability, which include past addiction. Specifically exclude the current use of illegal drugs from protection. Testing for drug use is not considered a medical exam. Alcoholics are protected by the ADA if they are qualified to perform the essential functions of the job.

Privacy Issues During Employment - Polygraphs and psychological testing (EPPA)

Prohibits employers from using lie detectors on incumbent workers or to screen applicants. Exceptions for: - Certain government work or specified occupations. - Ongoing investigation of the business (theft, embezzlement, espionage) based on reasonable suspicion Prohibits adverse action based on the refusal to submit to a test. Prohibits discharge of an employee based on the results of a test unless additional supporting evidence also exists showing wrongdoing.

Substance Use Testing: common law issues

State common law my present private causes of action for: - defamation - negligent testing - invasion of privacy - violation of contract or collective bargaining agreement

ADA - Alcohol and drug adicts

The ADA does not cover the use of drugs or alcohol, but it does cover questioning or discrimination against recovered addicts.

FCRA permits obtaining a consumer report or investigative consumer report if...

a "permissible purpose" exists. This includes employment purposes, including 1) preemployment screening for the purposes of evaluating the candidate, or 2) determining if an existing employee qualifies for a promotion, reassignment, or retention.

U.S. v. EU

U.S. employee privacy is governed by the states, there is no overarching organized federal law. EU includes employee privacy within its general rules applying to the protection of individuals.

Monitoring in the workplace: expectation of privacy

U.S. private-sector employees in general have limited expectations of privacy in the workplace. Physical facilities and equipment are the property of the employer.

Monitoring in the workplace: interception of communications

Wiretap and interception laws will apply. Consent and the "ordinary course of business" exceptions are the main way around this.