Employees disclose personal and sensitive details to their employers or managers in the pre-employment stage. Such information is important to trust employees and get to know who you hire on a deeper level. By law, employers have entitlement to the information they seek from potential employees. Employers use such details to determine employability or extension of work contracts.
The disclosed information includes address, age, social security number, national origin, and medical details. Undeniably, this information could get misused if it lands in the wrong hands. That is why confidentiality between employers and employees is vital.
Anyone who does not need to know such information, like other employees, should not access it. Leaking certain details such as disabilities and ethnic background is unethical.
Basic employee confidentiality laws
Different states might have different laws, but most are standard across the board. Issues like workplace monitoring and surveillance are not new in the employment sphere. An employee needs to know the scope of employee confidentiality laws so that they take action if their employers or managers break these laws.
The Privacy Protection Study Commission (1977)
The Privacy Protection Study Commission consists of 34 guidelines relating to employee privacy. The Privacy Protection Study Commission protects employees’ privacy but ensures it does so in a way that allows the organization to carry out its business.
Health Insurance Portability and Accountability Act of 1966 (HIPAA)
Employers and managers require their employees to fill out their health status and history details. Such data is sensitive, and as a result, it needs to stay private between the employer and their manager. This act ensures the inaccessibility of employee medical information by other parties.
Genetic Information Non-Discrimination Act (GINA) 2008
Genetic testing has become very popular today. Nonetheless, employers have no right to ask for genetic test results from their employees. In conjunction with this, managers cannot ask employees to take a genetic test to make employability decisions.
Electronic Communication Privacy Act (ECPA) 1968
This act guards against intentional surveillance on calls, personal or professional, and other electronic communication without the employee’s knowledge. However, the act exempts surveillance when using the employer’s equipment for communication. Employees are advised not to use company equipment such as phones and email accounts for personal communication.
Employee Polygraph Protection Act (EPPA) 1988
The Employee Polygraph Protection Act restricts employers from using polygraph tests to vet employees during the hiring process. Employers must not ask for polygraph tests unless the individual is a subject of inquiry or works for a sensitive firm that requires such intrusive tests.
Can a manager talk about you to other employees?
Unless under very special circumstances, managers must not talk about an employee with other employees. Besides, the law prohibits employers from disclosing certain employee information to their co-workers. Unnecessary gossip in the workplace has adverse effects and may lead to serious implications, especially if the gossiper has significant power over the recipient.
Office gossip has many negative effects, including:
- Wasted time and lost productivity
- Loss of morale and erosion of trust
- Divisiveness in the workplace
- Increased anxiety among workmates
- Tarnished reputations and hurt feelings
- Unhealthy work environment leading to attrition
It is unprofessional for your employer or manager to talk about you behind your back. If they need to discuss you with your workmates, you have the right to know.
Common workplace confidentiality violations
Every workplace is different, but issues of confidentiality violations are common in many offices. Different states have constitutional and statutory provisions protecting employees from certain intrusions at the workplace. The employer might not violate employee rights to privacy intentionally. However, that does not take away from the fact that they should handle certain situations differently.
A limited physical search is only allowed by law if there is enough evidence that the employee has company items in their possession. The Fourth Amendment prohibits unreasonable search and seizure. So, employers must be careful not to cross the thin line and unlawfully search employees.
Although setting up video surveillance in the workplace is necessary, employers must keep surveillance equipment in the common public areas. Also, the law allows surveillance in areas where there is no expectation of privacy and requires employers to inform employees of all areas with surveillance equipment.
Background and credit checks
Background check laws differ from one state to another. That aside, the federal FCRA (Fair Credit Reporting Act) states that all employers must inform employees and obtain consent before performing background and credit checks.
Leaking medical information
Employees disclose certain medical information to their employers because it is a requirement of many employment contracts. Such information should be inaccessible to co-workers because it is not beneficial to them in any way.
Alcohol and drug testing
Drug tests in the workplace are somewhat mandatory, depending on the industry you work for. The law applies to the disclosure of drug test results to your colleagues. When an employer acquires such results, they must keep it private.
Internet and Email
Your employer or manager must not intercept any form of communication you make in the workplace. Such includes wire, oral and electronic communication. If your employer acquires personal information shared via email, they must not use it against their employees or for personal benefit.
What is considered confidential employee information?
All organizations and companies require employees to keep client data and information safe. The same applies to employee information in the hands of employers and managers. Under no circumstances should an employer make this information available to other parties, except the human resource department and law enforcement officers, in case of an investigation.
Confidential and professional employee information includes but is not limited to:
- Personal data, including age, Social Security Number, relationship status, and address
- Job application information such as resume and background checks
- Employment contract, bonuses, pay rate, and benefits
- Job performance warnings, reviews, and disciplinary details
- Administrative information like tax forms, timesheets, and direct deposit forms
- The employee’s termination records, resignation letter, and unemployment insurance claims
Few individuals beyond the Human Resource department have access to confidential employee information. If personal information gets disclosed in an unprofessional manner, it leads to mistrust in the workplace and instances of hostility in the office.
Can you sue a manager for breach of confidentiality?
Suing your manager or employer depends on many factors. Among them is whether you are a private or public employee. Public employees enjoy more privacy rights than those in the private sector. However, if you have evidence of an invasion of privacy in your workplace, suing is a viable option.
The US constitution and state laws and statutes protect an employee’s privacy to a certain extent. When you present your case to a court of law, it is up to the courts to determine the legality of an employer’s actions. The employer’s justification for a breach of confidentiality plays a significant role in determining whether what they did was right or wrong.
As an employee, base your argument on policies and practices in your office, past incidences, and common sense. The argument will be stronger if you can prove that your employer engaged in the following:
Deception applies if an employer asks you to provide certain information for a specific use but later uses it to your disadvantage. An example is a urine sample collected during routine medical examination but is used to test for drugs, leading to your termination.
- Confidentiality violation
When employers ask you to fill out certain details, they promise to keep them safe. Disclosing this information automatically classifies the action as a breach of confidentiality.
- Unclear and intrusive monitoring
Placing surveillance equipment in the restroom, for example, goes against all privacy laws. It is an intrusion of personal space and privacy on many levels.
- Intrusion in an employee’s private life
Any information acquired about your personal life through means unknown to you for the employer’s benefit violates your privacy. Employees have a right to participate in activities outside work if they don’t interfere with the quality of work.
If an employee can prove any of the above violations of employee rights to privacy, they have grounds to sue and take legal action against their employer or manager.
- Stephen Bruce, HR Daily Advisor: 11 Common Workplace Privacy Issues (and 4 Common-Law Claims)
- Lisa Guerin, J. D., Nolo.Com: Proving Your Privacy Was Violated at Work