Chapter 17 EMPLOYEE PRIVACY TOPICS
Case Questions
1. (Q.) Did Dr. Ortega have a reasonable expectation of privacy, at least as to his desk and file
cabinets?
(A.) The Court determined that Dr. Ortega had a reasonable expectation of privacy.
2. (Q.) ployer have a warrant based on
-related
misconduct?
(A.) The probable cause requirement would impose intolerable burdens on public
3. (Q.) What did the Court decide in this case?
(A.) The Court decided that intrusions on the constitutionally protected privacy interests of
17.
1. (Q.) What is a qualified privilege in the context of this case?
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(A.) A qualified privilege is a defense that is raised by the defendants that would relieve
Pl
2. (Q.) Did the court find that a qualified privilege existed in this case?
17.3, Sanders v. American Broadcasting Cos., Inc., p. 644
1. (Q.)
(A.) ABC reporter Stacy Lescht took a position at PMG as a telepsychic. She videotaped two
2. (Q.) Was the Court of Appeals correct in setting aside the jury verdict in favor of the
plaintiff because there must be a complete expectation of privacy to recover intrusion
and other employees could hear the conversations in question?
(A.) The Court of Appeals was in error requiring a complete expectation of privacy and the
3. (Q.)
(A.) The court points out that the media defendant can attempt to show, in order to negate
the second element of the tort that of intrusion being highly offensive to a reasonable
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17.4, Cramer v. Consolidated Freightways Inc., p. 646
1. (Q.) Did the Union and the Company agree in their collective bargaining contract that the
company could conduct surveillance of its employees with hidden cameras behind two-
way mirrors?
(A.) One provision of the CBA referred to drug use and another provision referred to the
use of surveillance videotapes in certain specified circumstances. However, neither
2. (Q.) Is the use of two-way mirrors permitting the observation of restrooms illegal per se
under California criminal law?
3. (Q.) How did the Court of Appeals decide the case?
(A.) The Court decided that Section 301 does not preempt the invasion of privacy claims in
One group of employees brought an additional claim in state court for
intentional infliction of emotional distress. The court decided that because the
challenged conduct violated California criminal law, it wa
requirement for proving intentional infliction of emotional distress. The court also
17.5, Deal v. Spears, p. 650
1. (Q.) It is not unlawful to monitor the telephone conversation of an employee if the employee
has given prior consent. Did Deal give her employer consent in this case?
(A.) Consent to interception of calls, which exempts a party from civil liability for violating
the interception provisions of the Omnibus Crime Control and Safe Streets Act, may be
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2. (Q.) Because of the recent burglary of the store, did the employer have a legitimate business
calls made or received while at
work?
(A.) The employer Spears recorded and listened to the entirety of 22 hours of personal
3. (Q.) Under the Watkins precedent what is the extent to which an employer can monitor
personal phone calls to employees within the ordinary course of business exemption of
the federal wiretapping law?
(A.) An employer can only monitor the personal calls of employees to the extent necessary
17.6, Jakubowicz v. Dittemore, p. 655
1. (Q.) When a government agency such as DMH conducts urinary drug tests are they
(A.) Yes. The court and all other courts that have considered the question have found that
department employees?
17.7, Employees Union v. Von Raab, p. 656
1. (Q.) Summarize the testing procedures utilized by the Customs Service.
(A.) The employee is given a form on which to list any medications or legitimate reasons for
exposure to illicit drugs in the preceding 30 days. The form is sealed in an envelope that
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2. (Q.) Is the GC/MS test almost always accurate?
3. (Q.)
ordinary warrant and probable cause requirements?
(A.) The ordinary needs of law enforcement are to administer drug tests so that the results
4. (Q.)
the lack of understanding that begot the present exercise in sym
(A.) One possible answer is that Customs Service employees, whose human dignity is
17.8, Brotherhood of Locomotive Engineers and Illinois Central Gulf Railroad, p. 661
1. (Q.) Company Rule G prohibits the use of alcohol or drugs not only while on duty but also
pinion as to whether an employer can properly
regulate the actions of its employees when they are off duty and not being paid.
(A.) The public and fellow employees have a right to have trains operated in a safe manner
by employees who are properly qualified to operate the trains. The Hours of Service
2. (Q.) Should Engineer Robertson be returned to service upon successful completion of an
alcohol rehabilitation program? See Section 104 of the ADA in the Appendixes.
(A.) Because of the extreme misconduct in this case, it is very unlikely that the employer will
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17.9, Anderson v. Philadelphia, p. 665
1. (Q.) Did the congressional Office of Technology Assessment (OTA) Memorandum conclude
that the evidence established the scientific validity of polygraph tests for personnel
security screening?
2. (Q.) Does the city believe that polygraph tests encourage applicants to be candid in
responding to questions on the PDQ?
(A.) In addition to believing that the tests are reliable and valid, the city also believes that
Comment:
answers later confesses or is found guilty by a jury. Students may be asked for their
police positions later admitted to disqualifying information during a posttest review.
Counte
3. (Q.) Was it important to the outcome of this case that the plaintiffs had the burden of proof?
(A.) Yes. At the trial the district court placed the burden of proof on the city, and the
17.10, Gibson v. Overnight Transportation Co., p. 670
1. (Q.) Are employers who provide references to prospective employees presumed to be acting
in good faith, unless a lack of good faith is shown by clear and convincing evidence?
(A.) Yes, employers providing references are presumed to be acting in good faith, unless the
2. (Q.)
employer liable for defamation in this case even though the jury found express malice
and not actual malice?
(A.)
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Chapter Questions and Problems, p. 671
1. (Q.) Why does the law differ between public-sector employers and private-sector employers
in their testing of employees for drug use?
(A.) Public employers are bound by the provisions of the U.S. Constitution. When a public
2. [Drug testing in the private sector, Section 17.6.] The union may believe that the testing
program is unconstitutional but, as yet, private-sector employers are not subject to the
constitutional privacy and search and seizure restrictions that apply to public-sector
employers. The program may violate state statutes. In this case the union alleged that the
program violated an Oregon statute which prevents employers from discriminating against
The union could challenge the reasonableness of the law through arbitration. In this case
the labor agreement provided specifically for arbitration of this issue. For this reason the
:
The court in this case expressed a commonly held view on the drug testing issue when it
stated:
The nation faces a growing threat from alcohol and drug abuse, which has a
dire
that threat is another problem with national dimensions. Certainly, it is ap–
propriate that these problems be addressed through work rules which can be
evaluated by arbitrators, and then the courts.
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3. [Drug testing in the public sector, Section 17.6.] The court recognized that such testing places a
burden on the employees, but the compelling state interest in the safe operation of the plant
outweighs the burden. The court held that
4. [Polygraph examinations and wrongful discharge actions, Section 17.8.] If the state polygraph
statute had authorized the attorney general of the state to bring an action on her behalf, then
Cook may well have been precluded from bringing a common law action. However, the
a wrongful discharge action to enforce the public policy of the statute.
The EPPA of 1988 expresses congressional intent not to preempt state laws or collective
bargaining agreements that are more restrictive than the federal law. The EPPA does not
5. [Defamation, Section 17.9.] The escorting of Ms. Gay to her car was not a defamatory
publication, since it was not shown that such was perceived by employees or patients as an
While the statement on the state unemployment form giving the reason for discharge as
6. [Polygraph examinations, Section 17.8; Drug testing, Section 17.6.] As set forth in Section 146 of
the text, a local governmental agency, such as a police department, is excluded from the
Employee Polygraph Protection Act (EPPA). Also, in Anderson v. Philadelphia, the police
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7. [Public employee privacy rights; federal employees, the Privacy Act, Section 17.2.] The parties
agreed that the information Dr. Hall revealed to the Union representative was contained in a
8. [Confidentiality of medical records, Section 17.4.] Under the state law health care providers are
not to disclose medical information without written patient authorization. The doctors in
this case could disclose to the employer the functional limits of the patient that may entitle
9. [E-mail invasion of privacy, Section 17.5.] Employers have broad latitude under the Electronic
-mail. In
10. [Wiretapping; Right to Privacy, Section 17.5.] Walter has no case for either a wiretapping cause
of action or a right to privacy case. There Electronic Communications Privacy Act amended
the Federal Wire-
after hours and telling employees of its monitoring capabilities, will provide the company
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11. [Right of privacy E-mail, Section 17.5.] The federal wiretap laws were not violated. There was
no communication by human voice. There were no computer or phone lines tapped nor
12. [Invasion of Priva
are broad and strict, prohibiting health information disclosure in any form. Even though the