Most companies don't spend a lot of time worrying about their employees' privacy rights. But they should.
Consider this: Privacy lawsuits jumped 300 percent in the past 10 years, according to the Professional Liability Underwriting Society. And as federal and state lawmakers continue to push legislation expanding individual privacy protections, you'll surely see more invasion of privacy claims at U.S. workplaces.
The notion of "privacy" typically means e-mail policies or the strict privacy provisions of Health Insurance Portability and Accountability Act. But there are other, everyday individual privacy issues that can be more easily overlooked.
4 ways you invite a privacy claim
Under common-law principles, an invasion of privacy complaint can fall under one of four distinct "torts," or legal wrongs. To sue successfully for invasion of privacy, a worker has to prove only one, not all four. Here's a rundown of the four:
1. Intrusion upon seclusion. This occurs if your company intrudes on a worker in a situation where the worker has a reasonable expectation of privacy, such as spying on him at home or secretly eavesdropping on his conversations.
Real-life example: When a company suspected an employee was abusing its sick leave policy, it obtained copies of her credit card records showing that she was out shopping on her "sick days." The worker sued for invasion of privacy and won. The company's interests must be balanced against the degree of intrusion resulting from its investigation methods. The court said the employer's actions were too intrusive.
2. Misappropriation. This occurs when a company uses an employee's name or likeness for its own benefit without the employee's consent, such as to promote a product in a brochure or a Web site.
3. Disclosure of private facts. This type of invasion occurs when a worker's private and personal information is revealed in a situation when there's no legitimate need to reveal it.
Real-life example: An employee made it known that a gay employee's partner was listed as the beneficiary on his insurance benefits. A state appellate court said the employee had a valid privacy claim because the information was shared with employees who had no responsibility for the benefit programs and, therefore, had no need to know the information.
4. False light. This type of invasion of privacy occurs when an employee is falsely portrayed in a damaging way. Example: Publishing a letter in a trade magazine under an employee's name that doesn't accurately reflect the employee's views.
Truth is not a defense
For an employee to win an invasion of privacy claim, the intrusion must be intentional, must be a probe into his private affairs and must be seen as highly offensive to a reasonable person.
Also, unlike defenses in defamation claims, truth is not a defense to an invasion of privacy suit. That means you can't argue that an employee's personnel file truthfully says he flunked high school. Spreading the information in the first place is the offense, not whether it's truthful.
Reduce privacy expectations
Remind managers to use common sense before probing into employees' private affairs. If they're in doubt, have them turn to HR or legal counsel.
As a preventive strike, the best way to protect against invasion of privacy claims is to lower employees' expectation of workplace privacy. Use policies and procedures to spell out what's private at work and what's not. Here are six ways to draw those lines:
1. Notify employees of the lack of privacy in some areas. "Open areas" include parts of the workplace that (unlike restrooms) are related to work. Also, remind employees that e-mail and other computer systems are company property and, therefore, subject to monitoring at any time.
2. Establish policies on information disclosure and confidentiality. For example, potentially damaging comments in job appraisals should be reviewed by a supervisor, and the contents should be disclosed to others only on a "need-to-know" basis.
3. Safeguard medical and benefits information. Keep employee's medical information and histories in a locked filing cabinet that's separate from your personnel files. Again, limit access to a "need to know" basis.
4. Obtain a release when using name, likeness. Require employees, volunteers or clients to sign a waiver if you use their names and likenesses.
5. Centralize authority for giving employment references. This prevents managers from inadvertently slandering an ex-employee.
6. Check your state law. Every state has its own privacy rules and many expand the definition of what counts as invasion of privacy.
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