Experienced Employment Lawyer Handling Workplace Privacy Matters throughout Maryland and the District of Columbia
Joyce E. Smithey is a seasoned employment attorney who represents employers and employees throughout Maryland in matters involving workplace privacy. Ms. Smithey also counsels employers in Maryland regarding workplace privacy policies and compliance with state and federal laws.
Legitimate Business Interests v. Workplace Privacy
There is no question that an employer has legitimate business interests in maintaining a work environment in which employees are productive, safe, and efficient. Also of paramount importance to an employer is protecting and preventing the unauthorized communication of sensitive data, trade secrets, and confidential information. And, of course, an employer has an interest in protecting itself from liability based on certain actions of its employees.
The ability to monitor employees, therefore, is an important means for an employer to protect these interests. In fact, it would be an abnormal and irresponsible business practice if an employer did not monitor employee activities in this regard.
However, it is very important to note than an employer’s right to protect its business interests is not unfettered. This right must carefully be weighed against an employee’s entitlement to privacy in the workplace. Striking a balance between these two rights is not always easy, and in fact, may be quite challenging.
E-mail & the Internet
Both federal and Maryland state law prohibit an employer from invading the privacy of its employees with respect to personal lives and possessions. However, these privacy rights rarely extend to an employee’s use of an employer’s property, including computer systems and networks.
Because of this, employers utilize several varieties of monitoring methods to identify and eliminate employees’ Internet misuse, that leads to a significant decline in productivity, and to protect valuable business information from theft or fraud. These practices include the electronic monitoring and tracking of an employee’s computer and Internet usage, as well as e-mail. Moreover, employers may lawfully block employees’ access to non-work related websites.
In the hopes of reducing equipment and technology costs, an increasing number of employers now permit employees to perform job duties and conduct business through the use of personal devices rather than employer-owned devices. This practice, which saves money for both employers and employees, is referred to as a “bring your own device” or “BYOD” program.
Not surprisingly, BYOD programs presents privacy concerns in the workplace. Employers want to monitor and ensure that any company and customer data accessed through an employee’s personal device is adequately safeguarded. Yet, employers must be careful not to invade the privacy of employees by improperly accessing personal information found on the devices.
In order to address this issue and strike the appropriate balance between business interests and privacy rights, many employers institute BYOD policies as well as user agreements with employees. The goal is for both the employer and employee to be on the same page with respect to what is and what is not available and accessible to the employer.
It is likely that BYOD issues will continue to present challenges to employers as employees use more and more mobile apps to store sensitive and personal images.
Workplace Privacy As it Relates to Applicants for Employment
Even before an individual becomes an employee of a particular employer, he or she has certain privacy rights during the application and hiring process. Here is a list of some common workplace privacy issues that affect Maryland employers and job applicants:
- Credit Reports: Unlike some states, Maryland generally bars employers from obtaining credit reports of applicants for purposes of employment. However, there is an exception that allows employers to obtain credit information from applicants if said information is “substantially job related.”
- Lie Detector Tests: Maryland employers may not invade the privacy of applicants by requiring them to submit to lie detector tests as a condition for hiring. (There are some exceptions with respect to government and security employment positions).
- Medical Questions: Maryland employers may not require applicants for employment to answer questions that relate to psychiatric, psychological, or physical illness, treatment, disability, or handicap UNLESS:
- Having any of these conditions directly, timely, and materially affects an applicant’s fitness and/or ability to perform the specific job.
- Note: Employers are not prohibited from requiring an applicant to undergo an appropriate medical/physical examination (conducted by a physician) in order to assess an applicant’s ability and capacity to perform the specific job.
- Criminal Charges: Maryland employers may not require job applicants to disclose or reveal information regarding expunged criminal charges.
- Maryland law also bans employers from refusing to hire applicants or from firing employees based solely because the applicant/employee chose not to disclose any information regarding expunged criminal charges.
- Prince George’s County and the City of Baltimore take this prohibition on employers one step further:
- In these jurisdictions, “ban the box” ordinances are in place that prohibit the majority of employers from even asking job applicants about the existence of criminal records.
Social Media Passwords
Maryland became the first state in the country to enact a law that bans employers from requiring applicants or employees to reveal passwords or usernames to social media and other personal websites as a condition to hiring or maintaining employment. Many states have since followed Maryland’s lead in this regard.
In reality, this practice violates privacy rights of applicants/employees as well as their friends and family members who communicate through these websites. Moreover, requesting access to these sites is essentially the equivalent of asking all kinds of personal questions that are prohibited by law. (e.g., religion, marital status, sexual orientation, etc.)
Of course, there are some exceptions to this general rule. For example, an employer may investigate an employee’s use, access, or activity of a personal website to ensure compliance with financial and/or securities laws and regulations.
Moreover, an employer may investigate allegations and claims that an employee unlawfully or without authorization downloaded financial data, proprietary information, and/or confidential client information to his or her personal website.
Employees have some workplace privacy rights with respect to their personnel files. These files contain private information, and employers must regulate access to the documents. Employers should have policies in place that clearly name the individuals or the job titles of those who may access the files, such as direct supervisors and human resources directors.
Note: When a criminal or civil lawsuit is ongoing, others may be able to access personnel files.
Other Important Workplace Privacy Issues
- Drug & Alcohol Testing: Maryland employers may not ask employees regarding their use of drugs that are not illegal pursuant to state law or legally-prescribed drugs.
- However, a private employer does not invade workplace privacy rights when it requests a job applicant or employee to submit to tests for alcohol or illegal drugs – as long as the tests are conducted pursuant to legitimate business purposes.
- Note: Maryland has specific guidelines and procedures in place that employers must adhere to with regard to such tests. Also, employers may not require their employees to submit to breath tests.
- Surveillance Outside of Work: For job-related purposes ONLY, Maryland employers may conduct limited surveillance of employees outside of the workplace. Said surveillance may only be non-obtrusive and within reason.
- Telephone Calls: Maryland permits employers to conduct surveillance/monitoring of employees’ telephone calls, if conducted pursuant to specific business interests (e.g., monitoring of customer service calls).
- Note: The law permits employers to check and listen in on business-related telephone conversations only.
- Once an employer determines an employee’s call is personal, the employer must discontinue monitoring of the conversation.
- Recording Conversations: Under Maryland’s Wiretap and Electronic Surveillance Law, employers are prohibited from recording an employee’s telephone calls or in-person conversations by any electronic device, including a tape recorder, without the prior, specific authorization of all persons participating in the conversation.
Addressing these Issues
Employers should first and foremost notify and educate their employees regarding all monitoring methods and practices that occur in the workplace. This can be accomplished through employee handbooks, privacy policies, specific BYOD policies, and employee training. Moreover, it is important for employers to update and revise these policies before new and/or additional monitoring methods are implemented.
A clear communication of these policies establishes boundaries; and it lets employees know exactly what they should expect in terms of workplace privacy. It also conveys to employees the reasons behind the monitoring systems, including the benefits and protections afforded to both employers and employees.
Employees should expect to have limited privacy rights in the workplace. Additionally, employees should be cognizant of their rights and any violations that may take place.
Contact Maryland Employment Attorney Joyce E. Smithey Today.
If you are a Maryland employer and have questions regarding the establishment of lawfully-compliant workplace privacy policies, or if you need to update existing policies, contact Maryland Employment Attorney Joyce E. Smithey today.
If you are an employee struggling with workplace privacy issues and believe your privacy rights may have been violated, Attorney Smithey can provide legal guidance.
Employment lawyer Joyce E. Smithey will be happy to discuss your situation in confidence. To schedule an appointment, call (410) 269-5066 or get in touch online today.