Because of increasing regulatory scrutiny of privacy practices in the workplace, employers need to institute policies and procedures that ensure compliance and understand what rights companies have when it comes to monitoring their employees.

Employee records

Take extra care in safeguarding personnel files and medical records as you would any other confidential company information. Employers should keep personnel files stored securely in a locked cabinet, and make them available only to managers or supervisors who have a legitimate business reason to access them.

When it comes to employees’ medical records, there are strict laws governing the treatment of these files as set forth by the Health Insurance Portability and Accountability Act (HIPAA) and the American Disabilities Act (ADA).

ADA rules require that medical records be kept separate from other personnel files and strictly confidential.  They may be made available only to government officials, insurance companies that require medical exams, first aid and safety workers if needed to treat an employee, or the employee’s supervisor if the employee’s disability affects their work schedule or duties.

In addition, the Genetic Information Nondiscrimination Act (GINA) prohibits employers from gathering genetic information on employees. However, if an employer becomes privy to this information inadvertently, the employer is required to store it in separate, confidential files.

HIPAA imposes regulations on employers with more than 50 employees who administer their own health plans, requiring the appointment of an internal privacy supervisor, having policies and procedures to protect employee privacy and employee notification of those privacy rights.

Employee monitoring

Companies have the right to monitor their employees’ use of company-owned computer and phone equipment. However, you need to make it clear to employees that their activities on workplace devices will be monitored. You have the right to ask for user names and passwords for company-issued equipment, but not for personal user names and passwords, even if those personal accounts are used on work-related devices.

Companies also have the right to use video equipment to monitor property and personnel. Cameras may be installed in plain sight or covertly, and you are not required to notify employees that they are under video surveillance. However, companies may not view employees without their consent in certain places, including locker rooms and restrooms.

Employee social media use

The National Labor Relations Board has protected employee social media use under Section 7 of the National Labor Relations Act (NLRA). Before taking disciplinary action against employees for social media activities, employers should seek legal counsel to address this ever-evolving area of employment law.

Employment law can be complex. Skilled representation is necessary. Williams Commercial Law Group, L.L.P., is a law firm with decades of experience in commercial litigation, including employee lawsuits, IP infringement, business divorce, aviation, and high stakes litigation. Contact us at (602) 256-9400 and schedule a time to meet with us today.