Articles

Employer Rights

Many employers, afraid of hiring an employee who will steal, break the law, or otherwise subject the employer to liability, have made a practice of conducting credit or background checks of applicants. In addition, once an employee has been hired, the employer often takes additional steps to ensure that the employee spends his or her time doing the employer's business, perhaps by monitoring telephone calls or, more recently, Internet use. An employer who believes that an employee has stolen from the employer often asks the employee to take a lie-detector test, or searches his or her desk or locker. Unfortunately, each of these attempts by the employer to protect its business may itself subject the employer to liability, if done without regard for employee rights.

The least understood right in the workplace is the employee right to privacy. A public employee (that is, an employee of a federal, state, or local government entity) has a well-recognized right to be free of unreasonable searches and seizures by his or her employer, just as the average citizen has the right to be free of searches and seizures in his or her home. The private employee, too, has a right to privacy in most states, and that right protects employees from searches that might be considered offensive to the reasonable person and are of areas in which the employee has a reasonable expectation of privacy. So, for example, an employer who provides its employees with desk drawers which lock, or a locker which the employee locks with his or her own lock, may have created a reasonable expectation in the employee that the desk or locker is a "private" area that may not be searched by the employer. An employee's private mail, handbag and person are also often considered private and may only be searched where the employer has made clear that the employee does not have a reasonable expectation of privacy in these areas. An employer who enacts a lawful drug-testing policy, or a reasonable security policy that states that any item that an employee brings on the premises may be searched, may limit an employee's expectation of privacy.

An employee's expectation of privacy also protects employee information, such as medical or family-related information. If disclosure of the information would be offensive to a reasonable person and the information is not of reasonable concern to the public, the employer may violate the employee's rights by disclosing that information.

Employees also have a right of privacy in their telephone conversations and voice mail messages. An employer may monitor or disclose the content of such messages only if it has the employee's consent to do so or if it does so in the "ordinary course of business." Acceptable monitoring includes listening to a random sample of sales or customer service calls to coach performance, with employees' knowledge, or monitoring an employee who is suspected of using a workplace telephone or voice mail to steal from the employer, if the employer warns the employee that it plans to commence such monitoring. Even where monitoring is allowed under the law, however, an employer must stop once it determines that a call or message is personal. In contrast, an employer appears to be free to monitor e-mail that has been exchanged or stored on its own workplace system and may monitor or block employee use of the Internet.

In order to conduct a background or credit check of an applicant or an employee who has applied for promotion, an employer must comply with the federal Fair Credit Reporting Act, which requires that the employer give written notice of its plan to conduct such a check, and get written permission to do so. If the employer uses the report to turn down an applicant or deny a promotion, it must provide the employee or applicant with a copy of the report and an explanation of the subject's right to protest to contents of the report to the compiling agency. Under the Consumer Credit Protection Act, an employer may not retaliate against an employee because his or her wages have been garnished for unpaid debts or child support.

With limited exceptions, an employer may not ask or require an applicant or employee to take a lie detector or polygraph test, or retaliate against the applicant or employee for refusing to take such a test. If the employer manufactures controlled substances and the applicant or employee would have access to those substances, or if the employer is an armored car, security alarm or security guard company, and the applicant or employee would be protecting facilities involving health, safety, national security, or currency, then the employer may require such a test..

Finally, an employee who is a member of the military and who takes time off, either voluntarily or involuntarily, to serve on active duty or for training, has the right to be reinstated to his or her civilian job once his or her service is over, as long as the employee reports back to work in a timely manner.

Other employment laws also create employee rights. For example, the civil rights laws create the right to be free from discrimination based on gender, race, national origin, age, religion, or disability. Various whistleblower laws give an employee the right to complain about a violation of law by the employer without being retaliated against. Wage and hour laws create a right to a minimum wage and overtime payments. The variety and scope of employee rights mean that employers should seek legal advice to guide their employment decisions.

Disclaimer
This publication and the information included in it are not intended to serve as a substitute for consultation with an attorney. Specific legal issues, concerns and conditions always require the advice of appropriate legal professionals.