If you like today's post or any of my other series please “Subscribe” to this blawg to receive e-mail updates. In addition, follow me on Twitter and “Like” me on Facebook. If you need to contact me directly, please e-mail me at Ryankhew@hawaiiesquire.com. 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:
- Is there a legitimate business reason search? Is it reasonable?
- Is there an objective rationale behind the search (do you have good evidence)?
- Will the search provide clear evidence that company policy or the law has been violated?
- 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:
- you will want to make this as non-coercive as possible by allowing them to leave;
- do not threaten, physically or verbally abuse them;
- keep questions to minimum and focus on the task at hand;
- have a witness.
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.
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.