LEGL4500 Ch. 15

Intentional infliction of emotion distress

-Challenged conduct must be truly outrageous -Plaintiffs must show... -Intent to harm -Behavior that is so outrageous, shocking, or atrocious as to be beyond the bounds of what is tolerable in a civilized society -Severe emotional harm or distress

Placement in a false light

-Common privacy tort claims in workplace -Plaintiff must show that... -Characteristics, conduct, or beliefs falsely attributed to him or her -Individual publicizing the false information knew or should have known that it was false -Being placed in this false light would be highly offensive to a reasonable person -Similar to defamation but require that the information be broadly disclosed -Placement in false light, although highly offensive, is not necessarily injurious to one's reputation -Might involve erroneous statements about one's biography or undeservedly positive portrayals

Statutory protection of privacy

-Electronic communications privacy act has privacy as central focus -ADA, NLRA, and OSHA are not privacy laws but have implications for employee privacy and access to records

Polygraph procedural requirements

-Employees must not be asked questions designed to degrade or needlessly intrude on their privacy -Employees must not be asked questions concerning religious beliefs, opinions about racial matters, political beliefs, sexual behavior, and beliefs regarding labor organizations -Employees have right to review all questions beforehand -Employees must be informed whether any observational or recording devices being used -Employees have right to terminate a polygraph at any time -Employees must not be tested who have written documentation from a physician that their physical or mental condition might cause abnormal responses -Employees have right to a written copy of any opinion or conclusion based on test

Who can conduct searches?

-Employers are generally free to conduct workplace searches, subject to limitations imposed by 4th amendment (for public employees) and privacy torts (particularly intrusion upon seclusion)

How should employers go about interrogations regarding employee misconduct?

-Employers do not have authority to effectively incarcerate others -employers should not attempt to detain employees suspected of wrongdoing or force them to submit to interrogations against their will -Instead cooperation of employees in investigations should be requested

How should employers go about establishing policies regarding employee searches?

-Employers should establish policies notifying employees regarding the circumstances under which searches will occur, communicate the policies, and enforce them by conducting searches only under the stated circumstances -Searches themselves should be conducted in a reasonable (not overly broad, not resulting in destruction of employee property nondiscriminatory) manner -Evidence obtained through searches, particularly if it relates to potential criminal activity must be handled carefully and kept in secure location

Can employers have video cameras on their employees?

-In general, employers can have video cameras on their employees without significant legal concerns -Although informing employees that they are subject to surveillance is clearly not necessary in all cases, employers are on surer legal ground if they inform employees that they are subject to monitoring and surveillance

When can individual employees be asked to submit to polygraph tests?

-Individuals can be asked to submit to polygraphs in connection with such investigations only if they had access to property involved in investigation, the employer has reasonable suspicion of their involvement, and they are given written information regarding specific incident or activity being investigation and basis for particular employees for testing -Submission to polygraph exam cannot be required or made a condition of employment

Exceptions to ECPA

-Interceptions are legal if prior consent to them was granted -Providers of wire or electronic communication services are exempted from law's requirements to extent that such activities are necessary to render service or protect their rights and property -Business users of equipment furnished by providers are exempted to extent that such equipment is used in ordinary course of business -Refers to uses that are routine, for legitimate business purposes, and about which employees are notified -In terms of telephone conversations, it means employers can use additional extensions on business phones to monitor business class for service quality or other business purposes but cannot listen in on personal calls -Personal calls can only be monitored to the degree needed to determine that they are indeed personal -Under stored communications provisions, only the provider of the electronic communication service on which the message is stored and users of that service (with respect to messages intended for them) can authorize the accessing of stored communications

What do ECPA cases involving emails usually involve?

-Most ECPA cases involving emails and other forms of electronic communication not amenable to interception because they are stored prior to retrieval -focus instead on whether there has been unauthorized accessing or disclosure of a store communication that is on the part of ECPA called Stored Communications Act (SCA)

Is there a common law remedy for invasion of privacy?

-Most states recognize following privacy torts -Intrusion upon selection -Public disclosure of private facts -Placement in a false light -Appropriation of a name or likeness -intrusion of seclusion -Ex: snooping, prying, or otherwise engaging in unwarranted intrusions into one's private affairs -To establish that privacy has been invaded in this manner, plaintiff must show that an intrusion was such that it would be highly offensive to a reasonable person -Objects of intrusion must be truly private and intrusion must be highly offensive generally resulting in anguish or suffering -If intrusion is repelled, there is no invasion of privacy

To what extent is OSHA able to access medical records?

-OSHA provides employees and unions with a right of access to medical and exposure records created in compliance with the act -Because occupational diseases can take a long time to develop and such records are critical to identifying occupational basis of these conditions, exposure records must be maintained for 30 years and medical records for duration of employment plus 30 years Access to medical and exposure records produced in compliance with -OSH act which includes right to examine and copy records, must generally be provided within 15 working days

When can employers be sued for malicious prosecution?

-Occurs when criminal proceedings are initiated against an innocent party, the party initiating criminal proceedings does so with probable cause, the criminal proceedings terminate in favor of accused party, and accusing party was motivated by malice -Employers do not have to be correct or have ironclad evidence that employees have committed crimes to seek their prosecution, but they do have to have reasonable grounds for pursuing legal action and not appear to be out to get an innocent person

Ehling v. Monmouth-Ocean Hospital Service Corp. (NJ 2013)

-Plaintiff asserts a claim for violation of federal stored communications act (SCA) and argues that defendant violated SCA by improperly accessing her facebook wall post and argued they are covered by SCA because she selected privacy settings limiting access to her facebook page to her facebook friends -Defendants disagree and argue that even if SCA applies, the facts in this case fall under one of SCA' statutory exceptions -Access to plaintiff's facebook wall posts was authorized by a facebook user with respect to a communication intended for that user therefore the authorized exception applies and defendants are not liable under SCA and motion for summary judgment granted -Plaintiff failed to show that there was an intentional intrusion by any defendants

How are Weingarten rights limited?

-Presence of union representative must be requested by employees so need not be offered -Routine conversations not covered -Meeting to give already decided discipline not covered -Union representative is there to observe and not to engage in collective bargaining over prospective disciplinary action but doesn't need to be silent

Public disclosure of private facts

-Privacy can be violated by taking private and sensitive information and indiscriminately bandying it about -To establish a claim plaintiffs must show... -Public disclosure occurred -Disclosure involved facts that were truly private -Disclosure would be highly offensive to a reasonable person -Disclosure was intentional -Matter disclosed was not of legitimate concern to public -Disclosure must be broad meaning to a large enough group so that the information essentially becomes public knowledge

What does the Federal Privacy Act do?

-Regulates handling of personnel records by agencies of the federal government -Federal employees must be given access to their personnel records under reasonable procedures established by federal agencies, allowed to copy materials from their personnel files, and permitted to contest the accuracy of records in written statements that are included with any disclosures of the records to other parties -Federal agencies must obtain consent of employees before disclosing information from their personnel records to outside parties -Limits kinds of information that federal agencies can keep regarding their employees and imposes a duty on federal agencies to maintain accurate records -Violations of act can be hard to prove because plaintiffs must show that violations were intentional or willful and that there were actual damages such as adverse employment determination -Does not apply to private sector employers

Are searches intrusive?

-Searches by their nature are intrusive because they delve into contents of things that are not in plain view

What does the Electronic Communications Privacy Act (ECPA) do?

-Under ECPA, employers and others are prohibited from intentionally intercepting (through use of electronic, mechanical, or other devices) wire, oral, or electronic communications and from disclosing such information -Intentional, unauthorized accessing of stored electronic communications is also prohibited

How do unions affect video surveillance requirements?

-When a union is already in place, employers generally have an obligation to bargain with the union over the installation of video surveillance -Employers must not conduct surveillance of employees engaged in protected concerted activities including union organizing

Fair and Accurate Credit Transactions Act of 2003

-amended FCRA and clarified that employers should use outside investigators for workplace investigations of suspected employee misconduct without bringing the prior consent requirements of FCRA into play -If an adverse action is taken based on information from a third party investigator, employer is still required to disclose to the employee the nature and substance of the information that was basis for action

What can be a defense to both defamation and invasion of privacy claims?

-employee consent -Although most private sector employers are not strictly required to do so, it is advisable to obtain the consent of employees prior to divulging information from their personnel records to third parties

What is important for ECPA claims?

-intent

What are other common law tort claims arising in conjunction with privacy claims?

-intentional infliction of emotional distress

Koeppel v. Speirs Iowa 2011

-involved deciding whether surveillance equipment secretly installed in a bathroom can support a claim for invasion of privacy when the equipment could not be operated after it was discovered to produce identifiable images -District court determined evidence of an actual, rather than attempted, intrusion was required and granted summary judgment for defendant after concluding evidence was insufficient to sustain plaintiff's claim -district court granted speirs motion for summary judgment reasoning that although he intended to view Koeppel in bathroom, the tort of invasion of privacy required proof the equipment had worked and Speirs had viewed the plaintiffs Standard required an actual, as opposed to attempted intrusion -Court of appeals reversed, finding evidence of intrusion was sufficient to survive summary judgement Supreme court affirms decision of court of appeals, reverses decision of district court, and remand for further proceedings -Supreme Court references Hamberger vs. Eastman and Johnson v. Allen -Supreme Court says act of intrusion is complete once it is discovered by plaintiff because acquisition of information is not a requirement and that harm from intrusion arises when plaintiff reasonably believes an intrusion has occurred

How can employers minimize chance of false imprisonment or infliction of emotional distress?

-make it clear that the employee is free to leave the interview, do not threaten an employee with harm or arrest, do not lock or physically obstruct the door, avoid making accusations, allow employee a chance to answer rather than grilling or rapid questions and keep interview as brief as possible

Does the constitution explicitly provide a right to privacy?

-no -Constitutionally protected privacy rights have been fashioned out of 4th amendment's protection against unreasonable search or seizure -Supreme court ruled in leading case that public employees have no constitutional protection from workplace searches and held that public employees (unlike law enforcement officers) need not establish probable cause or obtain warrants before conducting workplace searches

Should employees assume their emails won't be read by employer?

-no -Employees are well advised to not assume their emails and other electronic communications will not be read by their employers especially when their employers are the providers of the communication system

What is the key concept in workplace privacy law?

-reasonable expectation of privacy -Employers should establish privacy policies that alert employees to the limits of their privacy rights in workplace

What standard applies to privacy?

-reasonableness -Plaintiffs must show they have reasonable expectations of privacy under the circumstances -If shown, public employers must defend the reasonableness of their actions both at their inception and in their scope

Intrusion upon selection

-snooping, prying, or otherwise engaging in unwarranted intrusions into one's private affairs -To establish that privacy has been invaded in this manner, plaintiff must show that an intrusion was such that it would be highly offensive to a reasonable person -Objects of intrusion must be truly private and intrusion must be highly offensive generally resulting in anguish or suffering -If intrusion is repelled, there is no invasion of privacy

How does the federal privacy act define "records"?

Act defines record to broadly include any item, collection, or grouping of information about an individual that is maintained by an agency

When can polygraphs be used?

Although EEPA prohibits most pre employment polygraph exams by private sector employers, polygraphs can be used for ongoing investigations of theft, embezzlement, sabotage, and related activities that result in economic loss or injury to an employer's business

Do states have laws prohibiting employer access to employee passwords?

At least 18 states now have statutes limiting or prohibiting employers from requesting or requiring that employees or job candidates reveal passwords for social media sites

What kinda of medical information can be disclosed according to ADA?

Disclosure of medical information that is voluntarily offered by an employee and not obtained through a medical exam or inquiry is apparently not prohibited by ADA

What is false imprisonment?

False imprisonment (the intentional restraint of physical liberty of an individual) is false because employers are not police or the courts

How should employers handle personnel records of employees?

Handling of personnel records is a matter of employer policy rather than law

What should employers do if employees refuse to cooperate with interrogations?

If refusal to cooperate, employers have option of disciplining or terminating the employee, or if crime committed, involve the police

Appropriation of a name or likeness

In appropriation claims, symbolic value of one's name or likeness which others then use for commercial gain or for other ends is at issue

What do investigations of potential misconduct usually entail?

Investigations of potential misconduct usually entail interviewing witnesses and interrogating employees accused or suspected of wrongdoing

When are searches reasonable at their inception?

Searches are reasonable at their inception when there are reasonable grounds for believing that they will produce evidence of wrongdoing or when they are necessary for non investigatory, work-related purposes

When are searches reasonable in scope?

Searches are reasonable in scope when the measures employed are not excessive in light of the purpose of the search and the seriousness of the suspected misconduct

To what extent can medical information be gathered after employment begins?

after employment begins, medical information can be gathered only to extent that it is job related and consistent with business necessity

What law deals with personnel records?

federal privacy act

Courts generally view privacy rights of employees as ___

minimal

Do employees have the right to attorneys present in interrogations?

no but employers must allow unionized employees who are called into interviews that they reasonably believe are likely to result in discharge or discipline to have a union representative present (called Weingarten rights because it is a from of concerted activity for mutual aid/protection)

Do public employers need to establish probable cause or obtain warrants prior to conducting workplace searches?

no but must however be prepared to defend the reasonableness of searches and other actions that infringe on employees' reasonable expectations of privacy

When do courts generally hold that stricter penalties associated with interception apply?

only when a communication is obtained at same time it is sent

Does medical confidentiality provisions of ADA apply regardless of whether an employee is disabled?

yes