Walk the Line on Employee Privacy

By Kathy Gurchiek Jun 17, 2013

CHICAGO—In a wide-ranging session June 16, 2013, at the Society for Human Resource Management (SHRM) Annual Conference & Exposition, attorney Jonathan A. Segal covered privacy issues that included workplace searches and bring-your-own-device practices.

Segal, a frequent speaker at SHRM conferences, is a partner at Philadelphia-based Duane Morris LLP in its Employment, Labor, Benefits and Immigration Practice Group. He also is the managing principal of the Duane Morris Institute, which provides training for HR professionals, in-house counsel, benefits administrators and managers at Duane Morris, at client sites and by webinar on employment, labor, benefits and immigration matters.

“Privacy rights can be destroyed or can be created by an employer,” Segal said during the session “Privacy Rights: A Workplace Oxymoron?,” which involved 33 pages of slides and hypothetical workplace scenarios.

He cautioned employers against creating statements that can be used against them.

For example, an employer that states in writing that it respects employee privacy may be making assurances that it can’t keep in the event an employer believes a workplace search is warranted.

“Be very careful about the sort of aspirational statements that give employees rights they otherwise wouldn’t have,” Segal said.

The practice of allowing employees to bring their own devices (BYOD)—including electronic devices such as smartphones and laptops—also raises some privacy issues.

“If you have a BYOD policy, you will want employees to agree to it and acknowledge their specific agreement to it,” he said.

The policy should make it clear that the employer reserves the right to review information contained on the personal devices the employee brings to the workplace, he said. If the employee’s device contains private information that the employee wishes to keep confidential, the employer should make it clear that the employee should not bring that device to work.

Similarly, if the employee leaves the organization, the employer should reserve the right to wipe employer-related information off the employee’s device. The risk of this, Segal pointed out, is that the employee’s personal content may inadvertently be wiped out as well. He recommended that employers take care to minimize that risk during the wiping process and to advise employees to back up their personal information in case that information is lost.

When it comes to physical searches of the employee, the employee’s belongings and/or work area:

  • As a matter of practice, an employer should implement the right to search generally only if there is reasonable suspicion of illegal activity, such as theft or drugs.
  • Searches in the absence of reasonable suspicion may be justified where there is a real security risk, such as a bomb threat.
  • An employer should never physically touch the person that the employer wants searched.
  • An employer should have HR or management witness the search.
  • In union shops, a union representative should be present, such as when searching an employee’s work area.
  • Conducting a physical search is best done through a third party. This protects the employer from becoming privy to private information such as prescriptions while preserving a sense of privacy for the employee.

Segal presented the hypothetical case of “Christine,” an employee seen downloading information onto a flash drive and putting the flash drive into her purse. When the employer asks to search her purse, she refuses on privacy grounds.

As a standard procedure in such cases, Segal suggested that the employer use a third party—security personnel or an employee assistance program representative, for example—to conduct the search. The third party simply confirms whether or not the item that in question—in this case the flash drive—is among the employee’s possessions.

“This creates a vehicle to address the employee’s privacy concern” and shows respect for the person’s privacy, Segal said.

Kathy Gurchiek is associate editor for HR News.


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