Balancing Employee Privacy and Employer Rules
Should an employee’s legal problems, health history, or off-duty use of alcohol/drugs be revealed when he applies for a job or as a condition of employment? Does an employee have an expectation of privacy for her email, cell phone, and internet use while at work? Can an employer run background checks, obtain private medical information, and mandatory drug testing to improve safety, increase productivity, and decrease his business costs?
1. Employment Background Checks
Background checks for employment are regulated by Washington’s consumer credit reporting statute, RCW Ch. 19.182. A “consumer report” used for “employment purposes” includes any information obtained from a credit reporting agency about “credit standing, character, general reputation, personal characteristics or mode of living…” that is used to evaluate a person for hiring or continued employment. RCW 19.182.010(4), (8). An applicant for employment must authorize the employer to obtain a background report, but explicit consent is not required from a current employee. However, in all circumstances, the employer must disclose its intent to obtain a report (usually in the job application form or employee handbook) and must provide the employee an opportunity to review and respond to information in the report before the employer takes adverse action based on the report. The law prohibits a background check unless the information to be obtained is “substantially job-related” or “required by law.” Id. at .020. Limits on the types of information which may be obtained and time limits (generally seven years) are stated in section .040. An employee may sue for actual damages, costs and attorney fees for violation of the statute. RCW 19.182.150.
The federal Fair Credit Reporting Act, 15 U.S.C. sec. 1681 has similar restrictions on investigative consumer reports for employment purposes. Its definitions are very broad and may apply to reference checks, criminal records, driving history, personal characteristics or mode of living information used for employment decisions. The Federal Trade Commission publishes compliance guidelines at consumer.ftc.gov for employment background checks, arrest and conviction records, and health/disability conditions. The federal Equal Employment Opportunity Commission publishes compliance guidelines for consideration of arrest and conviction records in employment decisions at www.eeoc.gov/laws/guidance for disparate impact and disparate treatment discrimination under Title VII of the Civil Rights Act of 1964.
Polygraph “lie detector” testing is prohibited by RCW 49.44.120 as a condition of hiring or for continued employment. In addition to a statutory penalty, an applicant or employee who prevails in a civil action for violation of the statute may recover actual damages and reasonable attorney fees. RCW 49.44.135. The only exceptions allowed by the statute are for law enforcement, juvenile court, drug manufacturing and national security employment. The Federal Employee Polygraph Protection Act, 29 U.S.C. sec. 2001 prohibits the use of polygraph tests by private employers to screen applicants or test employees in most circumstances affecting interstate commerce or federal contracting.
Genetic screening of applicants for employment or current employees is illegal in Washington. RCW 49.44.180 prohibits private and public employers from requiring testing for “genetic or inherited characteristics” from a “laboratory test, family history or medical examination.” Alcohol and drug testing, urine analysis, and blood testing for other legitimate purposes are not prohibited by this statute. The federal Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. sec. 2000ff prohibits discrimination based upon genetic history and restricts employers from requesting, requiring or obtaining genetic information in pre-employment inquiries and during continued employment. Compensatory and punitive damages are available in a civil action for violation of the law after a charge is filed and investigated by the EEOC. Compliance guidelines are published by the EEOC at www.eeoc.gov/laws/regulations/gina and regulations are at 29 CFR 1635.
An employer may not take adverse action against a current employee for assertion of workers compensation rights and remedies. RCW 51.48.025. However, an employer may consider an applicant’s workers compensation claim history as a factor in declining to offer employment and Washington does not recognize a statutory or common law cause of action for retaliation. Warnek v. ABB Combustion Eng. Servs., Inc., 137 Wn.2d 450 (1999).
Federal bankruptcy law prohibits a private employer from discriminating with respect to an individual who is or has been a debtor under the Bankruptcy Act. 11 U.S.C. sec. 525(b). RCW 6.27.170 prohibits the discharge of an employee because his wages have been subjected to a garnishment writ less than three times within any period of twelve consecutive months.
2. Employment Drug Testing
Washington does not restrict the employer’s right to require drug testing. The employer’s discretion to discipline or discharge an employee for drug or alcohol use is unrestricted under Washington’s employment-at-will doctrine. The Washington Supreme Court declined to adopt a common law wrongful termination remedy for authorized medical marijuana use. Roe v. Teletech, 171 Wn.2d 736 (2011).
Whether it is wise for a Washington employer to adopt a zero-tolerance mandatory drug testing policy, or better to have a libertarian tolerance for off-duty and off-premises drug use, may depend on what is good for business. Attraction and retention of skilled workers, quality, and timely productivity, and customer expectations all must be considered.
Many states have passed laws regulating when and how mandatory testing for drugs and alcohol may be imposed, e.g. upon application for employment, random testing, after a workplace accident or injury, upon reasonable suspicion or probable cause, or under a disciplinary “last chance agreement”. Many federal employees, such as those who handle classified information or perform law enforcement duties, are subject to mandatory drug testing. Federal contractors in the private sector often are required to have random and reasonable suspicion drug testing and to offer employee assistance/drug treatment programs.
Drug and alcohol addiction can be a disability under Washington’s Law Against Discrimination, RCW Ch. 49.60, and the federal ADA, 42 U.S.C. sec. 12114(a) and sec. 12210(a). An employee who is in a drug or alcohol recovery program, or who has been through a drug or alcohol recovery program, is protected from discrimination and should be given reasonable accommodation to attend treatment. Current use of illegal drugs, alcoholics or drug abusers who commit crimes, miss work, cause unsafe working conditions or who violate workplace rules are not protected. Violations of workplace rules or job duties due to substance abuse may result in discipline or discharge consistent with business necessity.
3. Fitness For Duty Exam
Generally, the employer’s right to require an employee to undergo a medical examination depends on which stage the request is made: pre-offer of employment, post-offer of employment, and during employment. Generally, the relevant statutes are the federal (29 U.S.C. sec. 2601) and state (RCW Ch. 49.78) FMLA; the federal Americans with Disabilities Act, 42 U.S.C. sec.12101; Washington’s Law Against Discrimination (WLAD), RCW Ch. 49.60; and Title VII of the Civil Rights Act of 1964, 42 U.S.C. sec.2000e.
A. Pre-offer of employment medical exams generally are prohibited. Questions during a job interview about whether an applicant is disabled, the nature or severity of his medical conditions, his worker’s compensation claims history, etc. are prohibited. The employer may ask only whether the applicant is able to perform the essential functions of the job with or without reasonable accommodation. WAC 162-12-140; 29 CFR 1630.14.
B. Post-offer of employment medical exams (after an applicant has been given a conditional job offer, but before he or she starts work) are permissible to determine reasonable accommodation necessary for a disability. The employer may require a medical exam and get medical information related to a disability and/or a request for accommodation only if the exam is specific to the offered job and consistent with business necessity. WAC 162-22-090. 42 U.S.C. 12112(d)(2).
C. After employment begins, an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity. This means that the employer must have a reasonable belief based on objective evidence that (1) an employee will be unable to perform the essential functions of his or her job because of a medical condition, and (2) the employee will pose a direct threat because of a medical condition. Employers may obtain medical information when the employee has requested a reasonable accommodation, when medical certification is required by law (e.g. periodic DOT certification for interstate truck drivers, FAA medical certification for pilots), when affirmative action is being taken for individuals with disabilities (e.g. vocational rehabilitation and return to work after a workers compensation injury claim per WAC 296-19A-070), or for evaluation of FMLA leave. Normally, an employee returning from FMLA leave only need provide a note from her own doctor saying she is “fit for duty” without further explanation or disclosure of medical history and treatment. 29 CFR 825.307 – 311.
Employers often misunderstand the law and make inappropriate demands for medical information. Common scenarios are: (1) an employee seeks disability accommodation and the employer demands disclosure of all medical records from the employee’s past treatment providers for several years; (2) the employer disputes a sick leave or return to work note from the employee’s doctor and demands to see all medical records relating to the absence; (3) the employer wants a troublesome employee to undergo a mental health exam or drug/alcohol abuse evaluation for possible disciplinary action; or (4) the employer asks the employee to disclose all prescription medications he is taking. Generally, such demands are illegal. Under the ADA a worker returning to work after an absence due to accident or illness can be required to have a job-related medical exam, not a full physical exam or disclosure of all medical history. Under the FMLA the employer can require medical certification by the employee’s doctor, and get a second opinion (employer’s choice of doctor) and third opinions only if the first two opinions conflict. Disclosure of all prescription medications generally is permissible only in positions affecting public safety and to the extent it may affect ability to perform essential job functions. In circumstances where the employer may not obtain such medical information, the employer may discipline the employee for his performance problems just as it would any other employee.
4. Workplace Privacy & Social Media
In 2013, the Washington Legislature enacted RCW 49.44.200 to protect employee social media from employer scrutiny. Subsection (1) prohibits an employer from seeking login information, passwords, lists of contacts, privacy settings, and content from applicants for employment and from current employees. The employer may not take “adverse action” – broadly defined as “discharging, disciplining…penalizing…or threatening…or refusing to hire” – against an applicant or employee. Subsection (2) provides an exception for an employer to investigate work-related employee misconduct, violation of workplace rules, or to assure legal/regulatory compliance; however, the employer may not request or require disclosure of login information during an investigation. The statute does not apply to “intranet or a technology platform that is intended primarily to facilitate work-related information exchange…”, does not prohibit the employer from accessing its own electronic media and hardware, and still allows the employer to adopt rules that restrict personal use of company resources. Id. at (3). However, an employer may not use the employee’s password or login information found on the employer’s device or program to view the employee’s private social media content. Id. at (4). RCW 49.44.205 allows an aggrieved employee or applicant to bring a civil action for injunctive or equitable relief, actual damages, a statutory penalty and reasonable attorney fees and costs.
An employer is well-advised to adopt a written policy regarding its right to access all electronic media it provides in the workplace and to dispel any expectation of privacy for data stored on its media.
5. Common Law Privacy Claims
The right to privacy is stated in the Washington Constitution. Article 1, Section 7 provides that “(n)o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” In Robinson v. City of Seattle, 102 Wn.App. 795 (2000) the court applied Article 1, Section 7 to strike down Seattle’s pre-employment drug testing program because the city’s cost and efficiency interests were not compelling reasons to allow a broad intrusion on the fundamental right of privacy. Permissible drug testing is limited to employment positions to positions with true public safety responsibilities (e.g. police and firefighters). The city’s stated interests of reducing absenteeism and health insurance costs and increasing productivity could not extend drug screening to jobs such as janitors and office workers. However, no court has yet extended Washington’s constitutional right to private sector employment. In Roe v. Quality Transp. Servs., 67 Wn.App. 604 (1992) the court upheld a private employer’s right to terminate an employee for refusing to submit to drug testing and declined to recognize a common law action for wrongful discharge in violation of the right of privacy.
Washington recognizes a common law tort action for invasion of privacy. Reid v. Pierce County, 136 Wn.2d 195, 213-14 (1998). The tort of invasion of privacy includes four distinct causes of action: intrusion upon seclusion, appropriation of name or likeness, public disclosure of private facts, and publicity placing a person in a false light. Mark v. Seattle Times, 96 Wn.2d 473, 497-99 (1981). Courts generally recognize that there is a diminished expectation of privacy in the workplace. Doe v. Gonzaga Univ., 143 Wn.2d 687, 706 (2001), rev’d on other grounds, 536 U.S. 273 (2002), recognized that an employer’s investigation could be unduly invasive and “highly offensive to a reasonable person” for tort liability. Prior to the adoption of RCW 49.44.200 (discussed above), the court in Tiberino v. Spokane County, 103 Wn.App. 680 (2000) acknowledged that an employee may have a common law privacy right to emails sent in the workplace. In White v. Township of Winthrop, 128 Wn.App. 588, 594 (2005) the court affirmed an employer’s liability for public disclosure of private facts about an employee’s medical history published in a newspaper. For a complete discussion of the privacy tort in the employment setting see Ch. 14, Employment Law Deskbook (3d ed.), Washington State Association for Justice (2013).