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Draw the Law: People Issues VIII, Protecting Workplace Privacy Part II

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Today’s post is following up on the kind of laws you as an employer should be worried about when dealing with employee privacy.  Last week I discussed Credit and Background Checks, as well as Surveillance and Electronic Monitoring.  Specifically, I will discuss Searching Personal Property and HIPAA Privacy.

Searching Personal Property

Remember worker safety?   Well, the employer has to create a safe work environment.  The employer also would like to make sure that company property remains in the possession of the company.  Lastly, the company needs to make workers remain productivity or doing what they are supposed to be doing.  Therefore, there is a need to search by the employer desks, lockers, and personal items brought onto premise by workers.

For today’s discussion I will focus solely on private employers, as public employers have different laws protecting them.  In general, an employer should not invade their employee’s privacy because they could be violating various laws, such as misappropriation, intrusion, false light, and unreasonable publicity.

Written Policy: Reserving the Right to Search

A company should adopt a policy that reserves the right to search desks, lockers, and other private places (this includes the employees’ person).  This needs to be carefully worded, as not to overstep the employer’s boundaries.  Basically, it should give the searches context, and explain to the employee when they will be conducted.   The employee should sign (acknowledging and consenting) to the searches.

Management should then go through a process determining when they should conduct a search.  Here are some questions that you should consider before conducting a search:

  1. Is there a legitimate business reason search?  Is it reasonable?
  2. Is there an objective rationale behind the search (do you have good evidence)?
  3. Will the search provide clear evidence that company policy or the law has been violated?
  4. If the search is conducted, will it provide safety to the public or workers by mitigating a risk?

*Do not go on fishing expeditions, it looks like you are grasping at straws and looks especially bad if the search did not yield any results.  Keep the search narrow and focused on the violation that you think the employee has committed.

During the Actual Search

If it is possible, because a search is an antagonistic situation try and get their consent.  When you conduct the search consider that the employee is highly stressed and you may want have these things in mind:

  1. you will want to make this as non-coercive as possible by allowing them to leave;
  2. do not threaten, physically or verbally abuse them;
  3. keep questions to minimum and focus on the task at hand;
  4. have a witness.

HIPAA Privacy

If you have gone to the doctor’s office before, and are a new patient all those forms you have to sign regarding protection of your health information has to do with HIPAA.  However, what does HIPAA have to do with employers?

Protected Health Information

Employers are increasingly becoming involved with the health of their workers do to regulation and the provision of benefits.  Therefore, at some point you may have a worker’s “protected health information”  (PHI) in your possession, which is covered under HIPAA.  PHI is very broad and in general just remember it is health/condition information created or received by not just those in the health care industry, but can be an employer, life insurer, and a school or university.

Basically, if try to obtain PHI from an employer’s physician or have a self-insured health plan, or are actively involved in plan administration, or happen to be one in the medical industry your business needs to make sure it does not disclose this information.  In addition, there are very specific requirements about how to handle and keep secure HIPAA-related information.

Last Word

In the case of both these privacy law issues it is best to seek out an attorney to help make sure you are compliant and help you draft/review documentation to use.  Worker privacy is always a delicate balance of respecting employee rights, but making sure the company is safe, secure, and can meet its own needs.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

Using Social Media at Work: Part I

Admit it.  You have posted something on Facebook or Tweeted on your phone while you are at work today.  I bet you are even doing it now as you read this blog!  However, there are some legitimate concerns that an employer and employee should have when dealing with the workplace and social media usage.

The Employer and Social Media Use by Employees

As an employer should I be concerned that my employees are using social media on the job?   The answer to this question is a definite, “yes.”  Today, we will focus on an employer’s liability for the actions of their employees, what that means for social media use by an employee, and the various laws that come into that type of situation.

Employer Responsibility for the Actions of Employees: Respondeat Superior

Remember, how I mentioned in the last post that it is part of your due diligence to research qualified applicants?  Well, the reason is that you, the employer, is responsible for actions by your employees during work.  In the law we call it respondeat superior and it means “let the master answer” in Latin.

For example, let’s say a local moving company’s careless truck driver crashes the company truck into another car during rush hour in Downtown Honolulu.  The car driver will sue the moving company for hiring such a terrible employee.  It is due to respondeat superior that the driver can sue the employer (the master) for the negligent action of their employee.

How Social Media Fits into this Employer-Employee Relationship

With social media replace that truck with tools like Facebook and Twitter, and you see how you could be on the hook for your workers.  For example, let’s say you are a Honolulu marketing firm, and one of your employees decides to help your company by blasting your Maui competitor via Facebook;  they make false claims and are using the Maui company’s images in their Facebook attack.  They also then spend a better part of the working day harassing the Maui company’s Twitter feed by tweeting lewd questions.  Are you in big trouble for their actions?

Yes.  Now, let’s briefly look at some of the legal concerns that you should worry about when dealing with employees that use social media.

Trademark, Copyright and Patent Infringement

In the example story of the employee who used social media to attack the Maui company, they used another company’s image.  Whenever, you use another company’s intellectual property (trademarks, copyrights, and patents) without authorization you will face an infringement claim.  Let’s say an employee uses a rival company’s logo and crosses it out by using a digital media editor.  He then shares the picture through Facebook to proclaim that your company’s brand is better.  The use of their logo is a violation of their property right. Posting photographs, published works, or video clips owned by someone else can also present legal risk to the employer.

Defamation

An employee that is Tweeting or posting false statements that hurt another person or business’s reputation opens you up to a potential lawsuit.  Your employee that spends half her day attacking another company and making false claims about their products or services is a problem for you.

Harassment/Discrimination

We have heard in the news about “cyberbullying” in the schools, but apply those same behaviors to workers.  The employer has a duty to create a safe working environment and if one guy is “textually harassing” other workers it could open you to harassment claims by those workers.  If this bully is also singling out someone of a protected class (race, religion, sexual orientation, etc . . .) that also can lead to a discrimination claim.

Invasion of Privacy

Now, let’s say one of your managers accesses a worker’s private file and discovers that worker is a recovering alcoholic.  He then posts something to the effect of, “Did you know that so-and-so had alcohol problems?” to his friends on Facebook or tweets about it.  This would be an invasion of privacy of the worker.

Endorsements: Too Much of a Good Thing

Endorsements?  Isn’t it a good thing that my employee is helping me out?  It can be, sometimes.  However, in Hawaii were there are tons of workers who love their company like a family, the employer has to watch that their employees are not gushing over the company’s products and services and not disclosing their allegiance.  The Federal Trade Commission (FTC) has issued several rules and guidelines regarding employees promoting their employer’s services and products via social media.  Basically, if they do not disclose their relationship and reader of the post that gets injured because of it the employer may be sued even though it was the employee who wrote the post.

For Medical Providers: HIPAA Concerns

This is a special note for medical practitioners and those in medical-related fields that handle patient information.  I’m sure you all are aware of HIPAA.  Then you should realize that the following combination of a patient’s private information, an unhappy employee, and that unhappy employee’s access to social media is a potentially explosive legal situation.

In fact, a similar situation has already occurred in Hawaii, where in 2009 a hospital worker was sentenced to a one-year jail term for accessing a patient’s medical record and posting the patient’s HIV status on her social media account.  While, the state was suing the employee, you should remember that employers are responsible for their employees and medical employers should always be concerned with a breach in Protected Health Information (PHI). In the case of posting a patient’s medical condition on a social media site, such an action is a definite breach.

For Lawyers and their Staff: Violating Attorney-Client Confidentiality

Those in the legal industry should already be able to see the headache that social media means for attorney-client confidentiality.  It easily takes one tweet or Facebook post by a legal secretary or paralegal that discusses what they are working on to violate legal ethics and rules.  Lawyers should take pains to train their staff from posting or tweeting about anything related to cases and clients.

Last Words

While, these things should of be concern to any business owner with employees in this day of social media there are steps they can take to deal with the situation.  Other than having a good screening and hiring process for thoughtful employees and employer can fashion a social media policy.  An attorney can investigate your workplace, make recommendations, and draft such a policy to be added to your handbook.  A rational and coherent social media policy would discourage many of the aforementioned behaviors and allow you to explain to workers what is acceptable with regard to social media and its use.  Finally, it may allow you to take steps to possibly terminate or punish that employee for violating your policy.  However, there are certain boundaries of what can be enforced in a social media policy.

With that, see you in the next Social Media and the Law where we will continue with Part II of Using Social Media at Work.  We will discuss the situation more form the employee’s side and some of the boundaries of what an employer can do with their social media policy.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.   No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.   Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.