Chapter 4
EMPLOYEE PRIVACY RIGHTS IN THE 21ST CENTURY
INTRODUCTION
The fourth chapter focuses on the idea of an employee’s right to privacy in the workplace. Violations of
privacy associated with the workplace include health records and personnel files, as well as drug testing and
CHAPTER OUTLINE
I. INTRODUCTION
A. Evolution of privacy rights
i. The fours ways in which privacy is violated under common law:
1. Appropriating the plaintiff’s identity for the defendant’s benefit
B. Constitutionally grounded privacy rights were first recognized in the landmark case of
Griswold v. Connecticut.
4-1 PRIVACY RIGHTS IN THE EMPLOYMENT AREA
A. Public employees
i. The Fourth Amendment of the U.S. Constitution grants public employees protection
against unreasonable searches and seizures by governmental entities
B. Private employees
i. Employees of private corporations have common law and statutory privacy
protections against
1. surveillance and eavesdropping
Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 4
CASE 4.1 KOEPPEL V. SPEIRS
808 N.W.2d 177 (Iowa 2011)
Facts: An employee who discovered a hidden video camera in a workplace bathroom brought an invasion
of privacy action against her employer, an insurance agent who secretly installed the camera. The district
court entered summary judgment in the employer’s favor based upon evidence showing that the camera
was inoperable at the time of its discovery due to a weak radio wave signal to the receiver in the
employer’s office. The court of appeals reversed and the employer petitioned for review, which was
granted.
Issue: When does an electronic device constitute an actionable invasion of privacy?
Decision: The trial judge concluded that the district court erred in granting the employer’s motion for
CASE 4.2 LIEBESKIND V. RUTGERS UNIVERSITY
— A.3d —, 2015 WL 7662032 (N.J. Superior 2015)
Facts: An employee was fired for visiting non-work-related websites after his supervisor used an
application to extract the employee’s web browsing history. The employee subsequently sued,
challenging his termination on a number of grounds, including invasion of privacy. With regard to this
cause of action he claimed his firing offended New Jersey’s Wiretapping & Surveillance Control Act, N.J.
Stat. Ann. 2A:156A-1, as well as the garden state’s Computer Related Offenses Act, NJ. Stat. Ann.
2A:38A-1. He also pointed to the Fourth and Fourteenth Amendments, because Rutgers University is a
“state actor.”
Issue: Was the trial judge correct in dismissing the plaintiff’s “invasion of privacy” cause of action?
Decision: The Appellate Division of the New Jersey Superior Court held that, particularly in light of the
CASE 4.3 HUSTON V. COSSETTE
— A.3d —, 2015 WL 601216 (Conn. Super. 2015)
Facts: A former employee claimed that the Chief of Police, knowing that the plaintiff was an officer in his
police department, “maliciously, and/ or recklessly released information from the plaintiff’s personnel file
to the press during an interview with reporters of the local newspaper.” The plaintiff alleged that the
defendant “opened up plaintiff’s personnel file” and told reporters about a letter of reprimand the plaintiff
received in 2007. The plaintiff argued that the information revealed by the defendant was not subject to
disclosure and was an invasion of personal privacy based upon intrusion into his right to seclusion.
Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 4
Issue: Did the Chief intrude upon the plaintiff’s right to seclusion, thus committing an invasion of
privacy?
Decision: The court explained that the crux of the tort of intrusion upon seclusion is the manner of the
C. Liebeskind is a classic case of computer surveillance by the employer to ascertain if the
employee, whose performance was under par, might be spending working time surfing the
Internet. The lesson of the case is that an employer can shield itself against subsequent
4-2 MONITORING AND REVIEWING COMPUTER INFORMATION AND USE
A. Both private and public employers are free to monitor and review employee use of
employer-owned computers with appropriate notice.
Information technology is the study, design, development, implementation, support or
management of computer-based information systems.
THE WORKING LAW
Rights and Responsibilities of Users of the Rider University Computer Network
Computer use policies are all over the board in terms granting privacy. Some agreements (such as this one
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4-4 REQUESTS FOR INFORMATION FROM THIRD PARTIES
A. Occur primarily at the hiring stage.
i. Communications between employers regarding a former/prospective employee are
typically protected by qualified privilege so long as they are not conducted with
malice*.
B. Prospective Employee Investigations
i. Because of the increase in workplace violence and negligent hiring* lawsuits,
employers are very interested in the history of their job applicants.
4-5 REQUESTS FOR MEDICAL INFORMATION
Generally,
A. The federal Health Insurance Portability and Accountability Act (HIPAA) was enacted in
1998 and mandates that stringent policies and procedures aimed at preventing the
B. Covered entities include:
i. Health care plans
Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 4
Note to professor: employers are not among the covered entities. However, if an employer has a self-
insured health plan, those activities in which the employer engages to administer this plan are covered
under the HIPAA privacy rules.
C. Purposes include:
i. Restricting access to health care information and tracking the use and disclosure of
such information.
Protected Health Information (PHI) is information specifically identified by federal law as
subject to privacy protection.
D. Employers Subject to HIPAA must:
i. Create a “firewall” between employees who administer health insurance plans and
all other employees to prevent illegal dissemination of personal health information.
ii. Amend health insurance plan documents to describe how PHI will be handled and
ETHICAL DILEMMA
Use of Genetic Information
One of the most pressing ethical dilemmas facing employers today is the use of genetic information that is
readily available. DNA testing can tell an employer and/or its health and life insurance carriers so much
about a person. However, genetic testing is undoubtedly among the most serious of privacy intrusions.
Some state Equal Employment Opportunity laws prohibit the use of genetic testing as a basis of
employment decisions.
4-6 INTERNAL INVESTIGATIONS
A. Drug Testing*
i. Drug-Free Workplace Act mandates drug testing for employers that receive federal
funding.
Active Employee Substance Abuse Testing Policy
Employees may be required to submit to drug and/or alcohol testing at a laboratory chosen by the company if
there is a cause for reasonable suspicion* of substance abuse*.
Circumstances that could be indicators of a substance abuse problem and considered reasonable suspicion
are:
1. Observed alcohol or drug abuse during work hours on company premises.
2. Apparent physical state of impairment.
If the employee refuses treatment, or does not comply with the treatment recommended by the EAP*,
termination will result.
Many employers mandate a pre-employment drug test. Ultimate employment is contingent upon passing of
the test.
4-7 FALSE LIGHT INVASION OF PRIVACY
In a pair of related 2015 decisions, sister courts in the state of Michigan issued back-to–back
January/February 2015 decisions in a high-profile case involving the attorney general’s office
and the University of Michigan. In these cases, the central figure, a former assistant attorney
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CASE 4.4 ARMSTRONG V. SHIRVELL
— Fed. Appx. —, 2015 WL 410545 (6th Cir., February 2, 2015)
Andrew Shirvell, an alumnus of the University of Michigan and a former Assistant Attorney General for
the State of Michigan, engaged in an online and in-person “campaign” against Christopher Armstrong, the
former president of the University of Michigan’s student council.
Across various forums, Shirvell attempted to justify his commentary by pointing to several purportedly
legitimate concerns. Shirvell, a proud Roman Catholic, apparently feared that Armstrong would
discriminate against Christian, pro-life, and pro-family people. Second, he claimed that “Armstrong’s
SHIRVELL V. DEPARTMENT OF ATTORNEY GENERAL
— N.W.2d —, 2015 WL 114608 (Mich. App., January 8, 2015)
The Department terminated Shirvell’s employment for “conduct unbecoming a state employee,”
including: “Engaging in inappropriate conduct by targeting individual members of the public both in
person and through electronic media, which could reasonably be construed to be an invasion of privacy,
slanderous, libelous, and tantamount to stalking behavior unbecoming an Assistant Attorney General….”
ANSWERS TO CASE QUESTIONS
1. Shirvell made numerous erroneous or unsubstantiated claims regarding Armstrong and his
sexuality. He called Armstrong “dangerous,” a “radical homosexual activist,” and a “major– league
fanatic who is obsessed with imposing the radical homosexual agenda on the student body.”
2. Students should understand that invasion of privacy is a tort distinct from defamation with differing
elements leading to liability. The defendant need not tell any lies in order, nevertheless, to be held
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3. The attorney general clearly considered the defendant’s behavior to cast a shadow on the
Department of the Attorney General. As a representative of that office, Shirvell had a duty to
uphold that image. Behavior such as was established by plaintiff Armstrong in his successful suit
4. As noted under answer 2, the tort of privacy invasion was accepted by the common law relatively
late in the history of Anglo-American law and remains a more rare cause of action than
defamation. This may be explained in part by the fact that the defendant is telling the truth, or
4-8 PERSONNEL FILES
A. Contents
i. Applications, references, letters of recommendation, performance evaluations,
disciplinary actions, and attendance records.
B. Access
i. Access to these personnel files should be limited to HR and legal department
employees and direct supervisors and senior management.
CASE 4.5 MARKEN V. SANTA MONICA-MALIBU UNIFIED SCHOOL DIST.
202 Cal.App.4th 1250, 136 Cal.Rptr.3d 395 (2012)
Background: High school teacher brought action against school district for declaratory, injunctive, and
writ relief challenging district’s planned disclosure to a student’s parent of records concerning district’s
investigation and finding that teacher violated district’s sexual harassment policy. The Superior Court
denied preliminary injunction and denied parent’s application to intervene. Teacher and parent appealed.
Issue: Should the parent be allowed to inspect the teacher’s personnel files?
Decision: The Court of Appeal held that: the agency’s decision to release confidential documents under
ANSWERS TO CASE QUESTIONS
2. There is little doubt that the teacher’s career is in jeopardy in this case. But, if the teacher is guilty
as charged, perhaps that is an appropriate ultimate outcome.
3. Procedurally, this is a somewhat complicated case. There are multiple parties in interest: the school
district, the teacher, the parent and the child. The court’s decision that the parent could not
intervene appears to be correct; the opening of the file to the parent’s inspection revolves around
4. Sexual abuse of minors has been a matter of national interest for a long time now. The scandals
involving the Catholic Church in America, as well as the Sandusky scandal at Penn State, are the
most notable sources of this national concern. In this case, the teacher’s desire to keep his file
confidential might gain some support from the fact that the minor’s privacy is also at issue. The
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ANSWERS TO END OF CHAPTER PROBLEMS
QUESTIONS
1. Invasion of privacy is based on the right to be left alone. Whereas, defamation is the right to
protect your reputation in the community.
2. Student responses to this will vary. Valid arguments can be made on either side. However, despite
the belief of the supporters of the Patriot Act, there does not seem to be a direct connection
3. No. Genetic testing has no legitimate place in a company’s human resource policy, unless it is to
ban its use.
4. Student’s responses to this question may vary. Each situation will be treated according to its own
facts. Only a person who had been trained in conducting workplace investigations should handle
5. The con is that if every counseling session is recorded, and one is accidentally not recorded, the
CASE PROBLEMS
6. Perhaps a company’s failure to implement safety measures and training could result in tort
liability if the company could foresee a robbery, such as if there had been prior robberies or other
7. Students will be unable to answer this question relying on the case supplied. The case does not
include any discussion of eavesdropping, beyond the bare fact that one employee accused her of
8. In this case the trial court erred in sustaining the objection to the request for information. There is
no bright line for determining whose rights are more important, those seeking to obtain justice
Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 4
9. Yes. The employer implemented only the surveillance measures reasonable to meets it business
purpose of determining whether someone was using a company computer to access child
10. In this case, the court said that Patricia Rossa had ample time to establish paternity, while Boyle
was alive. Failing to do that, it was not within the scope of the Workers Compensation judge to
11. The Washington court upheld the random drug testing policy as superior to a suspicion based
drug testing policy where student called for testing may be presumed guilty in the minds of their
12. Yes. The secret recording of the meeting without the consent or knowledge of her colleagues was
not only a violation of their privacy interests but against the law, as well. Scheaffer’s actions
13. The Supreme Court held that the employee’s answers to questions asked in a misconduct
investigation, at which he was informed of right to union representative’s presence, were
admissible. The Court declared that the earlier violation of not informing the employee of his
right to be represented by a union was attenuated and indirect, inasmuch as employee would have
14. The requirement of reasonable suspicion for a non-random drug test of public employee is a less
stringent standard than the probable cause needed for an arrest. However, according to the
Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 4
15. Students will be unable to answer this question relying on the case supplied. This case mentioned
nothing about invasion of privacy beyond the mere fact that she received a document that was in
her personnel file from her previous employment. There was no invasion of privacy if access to
HYPOTHETICAL SCENARIOS
16. This scenario is synonymous with Quon in that the salesman had a reasonable expectation of
privacy believing company would not be auditing his personal use of the computer. The
company’s intrusion was inadvertent and incidental. In addition, since the salesman’s action
17. The new employee should answer truthfully because the employer-provided insurance
questionnaire is protected under HIPPA privacy rules. There is no obligation to reveal anything to
18. The employer can provide information in the employee handbook that notifies employees that
random drug testing will be administered under reasonable suspicion.
19. It depends. On one hand, the federal government should be able to conduct reasonable
investigations without the fear of a lawsuit. At the same time, the federal government’s efforts
should be reasonable and not violate any privacy interests. Hatfill could argue invasion of
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20. Student’s responses to this question may vary. Valid arguments can be made on both sides. The
employer’s interests entail keeping the complaining employees names anonymous to avoid