Chapter 4: Employee Privacy Rights in the 21st Century

Employers subject to HIPPA must:

- Create a "firewall" between employees who administer health insurance plans - Amend health insurance plan documents to describe how PHI will be handled and by whom - Certify in writing that they will comply with HIPAA's regulations - Notify plan participants of the company's use and disclosure policies under HIPAA

Covered entities in PHI include :

- HC plans - HC clearinghouses - HC providers

INTERNATIONAL SECURITY MANAGEMENT GROUP, INC. V. ROLLAND

- In July 2011, William Rolland was a professional videographer visiting Miami for work and was scheduled to film an interview with a company executive for a business located at New World Tower in downtown Miami. -On the day of the incident, Jorge Acuna was the security guard posted to the lobby of New World Tower and was employed by ISMG. - On July 25, 2011, Mr. Rolland was arrested and later indicted by a federal grand jury for making a false or hoax bomb threat against the New World Tower in downtown Miami.

Court finding: INTERNATIONAL SECURITY MANAGEMENT GROUP, INC. V. ROLLAND

- The court found there was no connection between Acuna's 1993 arrest for grand theft and the alleged underlying intentional torts of malicious prosecution and defamation at issue here. Even if known to ISMG, Acuna's arrest almost 23 years prior would not have made Acuna's purported defamatory statements accusing Mr. Rolland of making a bomb threat foreseeable.

INTERNATIONAL SECURITY MANAGEMENT GROUP, INC. V. ROLLAND CONT.

-Acuna served as a witness, alleging that Rolland called in the bomb hoax. Rolland was found not guilty. - The Rollands later sued NWT for negligently hiring Acuna. In particular, the Rollands argued that Acuna should never have been hired to work at New World Tower because a provision in the service contractor agreement between ISMG and Panther Management barred the assignment of any security personnel to New World Tower if "charged or convicted of any crime."

Liebeskind v. Rutgers University: Facts

-An employee was fired for visiting non-work-related websites after his supervisor used an application to extract the employee's web browsing history. The employee subsequently sued, challenging his termination on a number of grounds, including invasion of privacy. With regard to this cause of action he claimed his firing offended New Jersey's Wiretapping & Surveillance Control Act, N.J. Stat. Ann. 2A:156A-1, as well as the garden state's Computer Related Offenses Act, NJ. Stat. Ann. 2A:38A-1. He also pointed to the Fourth and Fourteenth Amendments, because Rutgers University is a "state actor."

Surveillance

-Commonly used to describe "observation from a distance by means of electronic equipment or other technological means. - Surveillance also includes simple no- or low-technology methods such as direct observation, observation with binoculars, postal interception, or similar methods.

Liebeskind v. Rutgers University: Decision

-The Appellate Division of the New Jersey Superior Court held that, particularly in light of the university's Acceptable Use Policy for Computing and Information Technology Resources, the plaintiff did not have the reasonable expectation of privacy with regard to his work computer that is required to trigger a violation of the "search and seizure" protections of the U.S. Constitution. The court also found that the two state statutes were inapplicable to his claim.

Liebeskind v. Rutgers University: Issue

-Was the trial judge correct in dismissing the plaintiff 's "invasion of privacy" cause of action?

Four elements of common law privacy are:

-appropriating the plaintiff's identity for the defendant's benefit -placing the plaintiff in a false light in the public eye -publicly disclosing private facts about the plaintiff -unreasonably intruding upon the seclusion or solitude of the plaintiff

Genetic Testing

Examination of chromosomes, genes, and proteins in human cells in a search for defects

Networks

Groups of computers, all inter-connected to one another

Employee Assistance Program (EAP)

Includes a range of psychological, health, fitness and legal services aimed at helping employees solve problems that interfere with job performance

Reasonable Suspicion

Justifiably suspecting a person, based on facts or circumstances, of inappropriate or criminal activities

Malice

Knowledge or reckless disregard of the falsity of a communication

he federal Drug-Free Workplace Act

Mandates drug testing for employers receiving federal funding

system administrator

Persons employed by an organization's IT department to manage and oversee a network of computers

The Americans with disabilities act

Protects employees and applicants who may suffer from physical and mental disabilities from discriminatory use of their medical records to deny them employment and advancement

The Fourth Amendment of the U.S. Constitution grants what?

Pub lic employees protection against unreasonable searches and seizures by governmental entities.

Academic freedom

The college professors right to take unpopular positions in the classroom and in scholarly work w/o fear of reprisals by the university

information technology

The study, design, development, implementation, support, and management of computer-based information systems.

Finding: INTERNATIONAL SECURITY MANAGEMENT GROUP, INC. V. ROLLAND

Thus, admission of Acuna's 1993 arrest was improper and constituted an impermissible attack on character. Based on the foregoing, a directed verdict should have been entered in favor of ISMG and Acuna on Mr. Rolland's negligence claims.

Communications between employers regarding a former/prospective employee are generally protected by ______.

a qualified privilege

Employees of private corporations have what?

common law and statutory privacy protections against •surveillance and eavesdropping •monitoring and reviewing computer information and use •requests for information from third parties

Protected Health Information (PHI)

information specifically identified by federal law as subject to privacy protection

Private employers (and public employers in certain cases) are free to do what?

monitor and review employee use of employer-owned computers

Employees may be required to submit to drug and/or alcohol testing at a laboratory chosen by the company if there is a cause for _____

reasonable suspicion of substance abuse

Negligent Hiring

when an employer hires an employee that the employer knows (or should have known through reasonable checks) could cause injury to others