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Don’t assume privacy clause guarantees privacy

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in Human Resources

Some employers include a privacy clause in their applications and handbooks that tells employees they can opt out of having their names and addresses released to third parties. However, if a worker who is suing for wage-and-hour violations wants to get his hands on employee names and contact information for the purpose of building a class-action case, those privacy clauses can’t stop it.

Recent case: Roberto Martinez sued his employer, Crab Addison, alleging that the restaurant misclassified its employees as exempt managerial or executive employees to avoid paying overtime or providing meal and rest breaks under the California Labor Code.

He asked the court to force the company to provide him with the names and addresses for other employees so he could ask whether they wanted to join in the litigation.

Crab Addison said its employees sign a privacy statement in which they choose whether they want their contact information to be released to third parties. This, the company said, meant that the employees had a heightened privacy expectation and, therefore, their information should be kept private.

But Crab Addison’s form also said there were no guarantees that employees’ privacy would be protected.

The court sided with Martinez. It said that there was a strong public-policy reason to provide the contact information: Employees might want to know that there was class-action litigation concerning their wages even if they didn’t want their information sold or given to other third parties. Plus, the release forms didn’t guarantee privacy.

Because of these concerns, the information had to be turned over to Martinez and his lawyers. (Crab Addison v. Superior Court of Los Angeles County, No. B208142, Court of Appeal of California, 2008)

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