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Workplace Privacy

What are your privacy rights in the workplace?  What are employers allowed to do?  Under 
what circumstances?  Let's take a look!

By law, employers are required to keep certain employee records on file, including hours and wages, tax withholdings, and employee benefit information - vacation time, sick leave hours, 
and related benefit information.

Often personnel files will also contain copies of work evaluations, customer or client comments received, reprimand reports, and related information.

Some states place restrictions on an employee's access to personnel records, but Oregon and Washington state laws allow employees access to personnel files. 

The Oregon law states:

OR. Rev. Stat. §652.750

Employees have the right to see and copy any documents used by the
employer in making work-related decisions, such as promotions, wage
increases or termination.

The Washington law states:

Wash. Rev. Code §49.12.240 to 260

Employees have the right to see their personnel files at least once a year
and to insert written rebuttals of any information with which they disagree.
A former employee retains the right of rebuttal or correction for two years.
Does not apply if employee is subject to criminal investigation or if the
records have been compiled in preparation for an impending lawsuit.

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Some jobs require criminal background checks before a person can be hired.  Arrest and 
criminal conviction records are public records, but some states have certain laws prohibiting employers from accessing records of arrests, or questioning applicants about arrests, that 
did not result in convictions.

The Oregon and Washington state laws are as follows:

The Oregon law states:

OR. Rev. Stat. §181.557 to .560

Employers may seek criminal offender information after first advising
the current or prospective employees that such information is being 
sought.  The Department of State may inform the employer of the date
of arrest, offense, arresting agency, court of origin, disposition and
sentence.

OR. Rev. Stat. §659.030

Employers may not discriminate against an applicant because of a
juvenile record that has been expunged by law.

The Washington law states:

Wash. Rev. Code Ann. §43.43.815 to .845

Employers may request conviction records of current or prospective
employees for these specified purposes only:  employee bonding;
pre-employment and post-employment evaluation of employees with
access to money or items of value;  or investigation of employee
misconduct which may constitute a penal offense.  Employers must
notify the employee or prospective employee of the inquiry and make
the record available.  Employers who provide services to children or
vulnerable adults or people with mental or physical disabilities may 
obtain conviction records for employees, applicants and volunteers.
The information disclosed is limited to convictions for crimes against
children or other people, and does not include expunged records.

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Employers generally follow confidentiality standards when it comes to employee medical 
records.  Medical information should be kept confidential unless there's a legitimate 
business reason for disclosing information to others.

It's always a good idea to let the employer know, as a reminder, you wish to keep your 
medical information confidential.  It's also a good idea to confide information only to 
co-workers you trust to keep information confidential.

Should you need to request a work-related accommodation that requires providing the 
employer with medical documentation, be aware medical doctors can't release any medical information to employers without your signed permission.

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Be aware it's not uncommon for employers to check the credit ratings of applicants and employees.  This information is provided from credit bureaus.  It's important to note that 
applicants and employees must give signed permission, however, before the employer 
can review the report.  Some employers might include permission clauses on job applications, 
for example, or request a separate form be signed during the application process.

The Fair Credit Reporting Act, a federal law, requires credit bureaus to only provide credit information to those that have a legitimate business-related need for this information.  
Employers qualify and can access credit information, but written permission to view the 
report is required.

Because credit information might be used, it's important to check your credit report for 
accuracy and report any errors you find.  There may be a small fee to obtain a copy of your 
credit report from credit bureaus, but if there's an error in the report, you'll no doubt want to 
make needed corrections.

For information and to order a personal credit report, contact the following companies at 
their web site or at their toll-free number:

Equifax   -        1-800-685-1111

Experian   -     1-866-200-6020

TransUnion  -  1-800-888-4213  

These companies provide information on how to correct a report, but if you need additional guidance, contact:

The Federal Trade Commission

Your State Consumer Protection Agency or your State Attorney General's Office can assist 
if you suspect your credit report is being misused.

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Examinations and testing in the workplace might include medical exams, drug and alcohol 
testing, psychological testing, lie detector tests, HIV and AIDS testing, and others - depending 
on the type of job you're applying for.

Although testing may be required, the timing of tests can be an important factor under ADA 
and other laws.  Let's look at the legal requirements related to testing.

Medical Examinations:

Employers may require medical exams to ensure employees can physically do the job.  

However, under ADA, employers cannot require a medical exam until after an applicant has 
been offered the job, and the medical exam is required for all employees entering the same position.  Employers can make the employment offer contingent upon the person's passing a medical exam.

If an accommodation is being requested, medical documentation can also be required by an employer.

The ADA also requires medical information be kept in a separate file from other employee 
records and limits access to this information to supervisors, medical personnel in an 
emergency, or government compliance officials checking an employer for ADA compliance.

Medical exams, including psychological exams, may be required for current employees if 
there's a substantial concern that health and safety in the workplace may be in jeopardy.

Drug and Alcohol testing:

Many companies now require drug and alcohol testing, and a federal law, The Drug-Free Workplace Act, actually requires businesses receiving federal grants or contracts to be 
drug-free, or the business risks losing federal funds.

Employers can test job applicants when:

Current employees may also be tested if an employee's work seems impaired from drug or 
alcohol use, or there's a concern related to worker safety or property damage.

Many states have additional laws regarding drug and alcohol testing, but the laws vary widely.  Following are the state laws for Oregon and Washington.

The Oregon law states:

OR. Rev. Stat. §659.227

Employers may not require any employee or job applicant to submit to
any breathalyzer alcohol test unless there is a reasonable suspicion that
the employee or applicant is under the influence of alcohol.

OR. Rev. Stat. §438.401 and .435

When employees are tested for drugs, the laboratory must be licensed by
the state and must follow certain procedural safeguards.  Onsite screening
tests are permitted, provided the tests meet U.S. Food and Drug Administration
standards.  Written notice of test results must be reported to the person from
whom the specimen was obtained.

The Washington law states:

Wash. Rev. Code §49.82.010

Private employers who want a discount on their workers' compensation
premiums may test applicants if advance notice has been given and a
job has been offered.  Employees may be tested upon reasonable
suspicion of drug abuse, following a workplace accident, or at random.
Employer must post testing policy and must offer an employee-assistance
program to employees who test positive before terminating them.
Employers can terminate employees who have a second confirmed
positive test or refuse to participate in the employee-assistance program.
Employees have the right to explain or contest the results.  Random testing
is allowed.  Results are confidential and cannot be used in a criminal
proceeding.

 

Psychological Testing:

In an attempt to gauge if a person might lie, steal, or be unreliable on the job, some 
employers use personality tests or questionnaires during the screening process.

If such screening tests are used, two basic rules apply:

These tests have become controversial as many feel they're discriminatory, and some 
states have state laws limiting their form and use.

HIV or AIDS Testing:

The ADA prohibits the testing of applicants to screen out people with HIV or AIDS.  However, 
if an applicant is offered a job, testing might be possible if an individual or group isn't singled 
out.  Also, the employer has to be able to justify the test is necessary.

It's important to note that some states have enacted laws regulating HIV testing by employers.  
And some states are now banning employers from requiring the test as a condition for 
employment, like Massachusetts, for example.

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Telephone:

Employers are legally allowed to monitor workplace telephone calls.  This is commonly done 
when evaluating an employee's customer service to incoming callers, for example.  But be 
aware calls can be monitored anytime!

However, there's one exception - personal calls.  The Electronic Communications Privacy Act 
only allows an employer to monitor a personal call if an employee knows the employer is 
monitoring the call, and the employee gives consent.  If consent is not given, the employer 
must hang up as soon as the employer recognizes it's a personal call.

Computers:

Be aware your work site computer files may be viewed by your employer.  Some companies 
have specific policies regarding computer file access by employers.  Check with your company 
to see if a policy exists. 

E-mail:

Also be aware employers can monitor employees' e-mail messages sent and received, and 
this can be done very easily if messages are copied onto a system server.  Your deleting messages alone doesn't remove them from the system server.  And they can be easily 
retrieved by your employer!

Again, check your company's policies regarding e-mail use -- and e-mail protocol.  A good 
general rule-of-thumb:   Don't send messages you don't want your employer to see, and limit 
(or avoid) e-mails during work time to family and friends.

Internet use:

Like e-mail, it's wise to assume an employer can monitor internet use through the computer 
system, and the employer can see if the internet use is work-related or not.  The general rule-of-thumb:   Surf the web for personal use on personal time at home -- not during work!

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In a nutshell, employers can set clothing and grooming standards in the workplace, and the standards can be a condition of employment as long as the standard applies to all employees working in a similar position.

Clothing standards:

Often a company's dress or uniform code is noted in the company's employee handbook.  
If not, observe other workers in the company to gauge appropriate dress for the position.  
You'll likely find a higher dress standard level is expected when important people or clients are visiting, and for company public relations (PR) events.  There may also be a higher standard of dress for employees who have direct contact with the public.  

Even if a dress code isn't spelled out in the employee handbook, the general rule-of-thumb is:
dress in a way that helps project a favorable image for the company.

Grooming standards:

Grooming codes may not be spelled out in an employee handbook, but it's expected 
employees will be clean and neat in appearance, and look presentable on the job.  Good 
personal hygiene and a clean and neat appearance are considered a "must" in most work environments.

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Some employers may have conduct or behavior codes noted in employee handbooks, and 
some may not.

In general, employers can and do expect all employees to conduct themselves appropriately 
and professionally in the work environment.  Conduct that endangers the health or safety of 
others, or substantially impacts the working environment, can be grounds for dismissal.

Sometimes also included in the company conduct code are policies related to personal relationships with co-workers in the workplace - from dating to marriage.  Companies can 
set policies, but some states may prohibit employers from discriminating against employees based on marital status.

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