What should be included in a workplace privacy policy?

  

1. Read the slides and answer the questions 2. Reply 2 posts from others.Questions:Consider a workplace privacy policy. What do you think it should look like,i.e., what would you include?Should you include monitoring employee’s Internet activity, why or why not? Lastly, how to investigations for other HR issues fit into the privacy policy (internal versus external investigators)?
David Walsh
EMPLOYMENT LAW FOR
HUMAN RESOURCE
PRACTICE, 5E
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Privacy on the Job: Information,
Monitoring, and Investigations
Chapter 17
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service or otherwise on a password-protected website for classroom use.
Chapter Outline
Overview of Workplace Privacy Protections
Handling Records and Employee
Information
Monitoring and Surveillance of Employees
Investigation of Employee Conduct
2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
Overview of Workplace Privacy
Protections
Employers gather a great deal of
information about their employees, monitor
their employees actions and investigate
allegations of wrongdoing
The volume of information available about
employees and the means of monitoring
them have expanded greatly in recent years,
raising questions of privacy
What are the legal limits to incursions upon
privacy in the workplace?
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service or otherwise on a password-protected website for classroom use.
Workplace Privacy Protections
Constitutional Protection (1 of 2)
Public employees enjoy privacy rights
deriving from the 4th Amendment to the
U.S. Constitution, which prohibits
unreasonable searches and seizures
Note that such rights have limits
Public employers need not establish
probable cause or obtain warrants before
conducting workplace searches
Note that such searches and other actions
impinging on privacy must be reasonable
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Workplace Privacy Protections
Constitutional Protection (2 of 2)
A reasonable expectation of privacy is
key to privacy claims based on the
constitution and on other grounds
If an employee cannot be said to have had a
reasonable expectation of privacy in the
circumstances, she will not prevail in a
privacy claim
Employers should establish privacy policies
that alert employees to the limits of their
privacy rights in the workplace
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service or otherwise on a password-protected website for classroom use.
Workplace Privacy Protections
Common Law Protection (1 of 4)
Whether there is a reasonable expectation
of privacy is a case-by-case determination
based on policies, practices, and other
circumstances.
Most states recognize the following
privacy torts:

Intrusion upon seclusion
Public disclosure of private facts
Placement in a false light
Appropriation of a name or likeness
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service or otherwise on a password-protected website for classroom use.
Workplace Privacy Protections
Common Law Protection (2 of 4)
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service or otherwise on a password-protected website for classroom use.
Workplace Privacy Protections
Common Law Protection (3 of 4)
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service or otherwise on a password-protected website for classroom use.
Workplace Privacy Protections
Common Law Protection (4 of 4)
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service or otherwise on a password-protected website for classroom use.
Workplace Privacy Protections
Statutory Protection of Privacy
Several statues concern privacy or have
privacy-related provisions:

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The Privacy Act of 1974
The Electronic Communications Privacy Act
The Americans with Disabilities Act
The National Labor Relations Act
The Occupational Safety and Health Act
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service or otherwise on a password-protected website for classroom use.
Handling …Employee Information
Personnel Records (1 of 2)
While a few states have laws governing an
employers handling of personnel records, the
employers policy generally controls
Some states grant employees the right to review
and copy their personnel files, and restrict access by
others
The federal Privacy Act governs the handling of
personnel records of federal employees
Violations can be difficult to prove because plaintiffs
must show that violations were intentional or willful
and that there were actual damages, such as an
adverse employment action
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Handling …Employee Information
Personnel Records (2 of 2)
Employers generally must allow union
representatives to see the personnel files of their
members
Recommended: Even though few private-sector
employers are legally required to do so, it is
sensible to obtain the consent of employees prior
to divulging information from their personnel
records to third parties
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Handling …Employee Information
Medical Information (1 of 3)
Under the ADA:
Only medical information that is job-related and
consistent with business necessity can be obtained
from current employees
Employers must keep information regarding an
employees medical condition or history in a
location apart from other personnel records
and treat it as a confidential medical record
Such information should be made available to
managers, supervisors and first aid personnel for
reasons of reasonable accommodation and
treatment
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Handling …Employee Information
Medical Information (2 of 3)
Under the OSH Act:
Employees and unions have the right to access
members medical and exposure information.
Such access must generally be provided within
15 working days
Medical monitoring of employees may be
required.
Records of exposure to toxins must be kept for
30 years
Medical records must be kept for the duration
of employment, plus 30 years
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Handling …Employee Information
Medical Information (3 of 3)
HIPAA regulations primarily affect health care
providers and self-insured companies
Any employer that receives protected health
information from insurers or health care must:
Limit the uses and disclosure of that
information;
Train staff on maintaining the privacy of medical
information;
Designate a privacy officer with responsibility
for compliance; and
Notify employees of their rights
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Monitoring Employees
Video Surveillance
In general, employers can train video cameras on
their employees without significant legal concerns,
at least in places open to view
Employers must not conduct surveillance of
employees engaged in protected concerted
activities, including union organizing.
Recommended: If your firm uses video monitoring,
inform employees that they are subject to
monitoring and surveillance, even though such
notice may not be legally required
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Monitoring Employees
Electronic Communications (1 of 3)
Under the Electronic Communications
Privacy Act (ECPA), employers (and others) are
prohibited from:
Intentionally intercepting (through the use of electronic,
mechanical, or other devices) wire, oral, or electronic
communications
Disclosing such information
Unauthorized accessing and disclosure of stored
electronic communications
The distinction between intercepting and
accessing has proven troublesome for email and
internet transmissions
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Monitoring Employees
Electronic Communications (2 of 3)
Intercepting generally means capturing the
communication at the exact time it is being sent
Interceptions are legal with prior consent
Communication service providers are exempt
Example: An employers search of an employees stored
emails in its own system is not a violation
Business users of the providers equipment are
exempt if the equipment is used in the ordinary
course of business
Example: An employer could install additional extension
phones to listen in on employees business (but not
personal) calls
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Monitoring Employees
Electronic Communications (3 of 3)
The law regarding the privacy of workplace
electronic communications are in flux
Overall, employees should assume that their
emails and other electronic communications will
be read by their employers
Recent cases held against employees, finding they had no
reasonable expectation of privacy
One court wet so far as to cite the existence of a
community norm in which it is now common practice
for employers to monitor employee computer use
The Supreme Court has been cautious about
expanding privacy rights in electronic
communication
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InvestigationEmployee ConductSearches (1 of 3)
Conduct Investigations professionally
The people conducting them should be credible
and convincing if called on to be witnesses in
legal proceedings
Under the Fair Credit Reporting Act,
employers may use outside investigators for
suspected employee misconduct without
obtaining consent
But if an adverse action is taken based on
that information, the employer must
disclose it to the employee
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InvestigationEmployee ConductSearches (2 of 3)
Generally, employers may conduct
workplace searches, subject to the Fourth
Amendment (for public employees) and
privacy torts (particularly intrusion upon
seclusion)
Obtaining consent is best
Employers should:
Establish policies,
Notify employees regarding the circumstances
under which searches will occur, and
Conduct searches only as stated
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InvestigationEmployee ConductSearches (3 of 3)
Searches should be conducted in a
reasonable manner
not overly broad
not resulting in destruction of employee
property
not discriminatory
Evidence obtained through searches, must
be handled carefully and kept in a secure
location
Strip searches and deceptive means of
conducting searches should be avoided
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InvestigationEmployee ConductInterviews & Interrogations
Poorly performed interrogations have great
potential for generating legal claims,
especially for false imprisonment and
infliction of emotional distress
Under current law, most employees do not have
the right to have attorneys present in these
situations
But unionized employees called into interviews
they reasonably believe are likely to result in
discipline have the right to have a union rep
present if the employee requests it, tho if no rep
is available, the interview can proceed
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InvestigationEmployee ConductPolygraphs (1 of 2)
The Employee Polygraph Protection Act (EPPA)
prohibits most pre-employment polygraph exams
by private-sector employers
However, polygraphs can be used for ongoing
investigations of theft, embezzlement, sabotage,
and related activities that result in loss or injury
to an employers business
Even then, submission to a polygraph exam cannot be
required or made a condition of employment, and an
employee cannot be disciplined or discharged for failure
to submit
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InvestigationEmployee ConductPolygraphs (2 of 2)
During the exam, employees:
Must not be asked questions designed to
degrade or needlessly intrude on their privacy
Must not be asked questions concerning
religious beliefs, opinions about racial matters,
political beliefs, sexual behavior, and beliefs or
activities regarding labor organization.
Have the right to review all questions
beforehand
Must be informed about any observational or
recording devices being used
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Acting on Results of Investigations
If the wrong conclusions are drawn and
communicated to others, defamation claims
may arise, and the qualified privilege may be
lost
Recommended: Treat such information as
sensitive and limit communication to those
with a legitimate need to know
Malicious prosecution occurs when
criminal claims are initiated against an
innocent party
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What Would You Do?
You are the manager of a clothing store
which caters to young, college-age students
in your university town, and most of your
employees are college students. One such
employee is Leanne. One day at the store,
you answer the phone. The caller asks for
Leanne, and when you advise that Leanne is
not here today, the caller tells you that she
is calling from Dr. Wilsons office to report
that Leannes HIV test came back positive,
and that she should come back in for a retest as soon as possible. What would you
do?
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Next:
Chapter 18 Terminating Individual
Employees
How do you fire someone without incurring
legal liability?
What are the reasons for which you may NOT
terminate someone?
The answers to these questions and more
are next.
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Instructors Notes: (1 of 2)
Instructors notes for What Would You Do?
Students should first realize that the report of
Leannes positive HIV test should never have
been divulged to the manager, and the manager
must maintain confidentiality of this information.
The manager should immediately take steps to
notify Leanne privately of the call, and perhaps
of the message.
Ideally, students will recognize that they should
not record this information in Leannes
personnel file.
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Instructors Notes: (2 of 2)
Instructors notes for What Would You Do?
They should recognize that, if the retest
confirms the diagnosis, Leanne is considered
disabled under the Americans with Disabilities
Act, and the manager should consider whether
Leanne poses a direct threat to herself or
others on the job, and if so, whether a
reasonable accommodation can be made. Given
the clothing store environment, it would seem
that there is no direct threat, and that a
reasonable accommodation can be made should
the re-test confirm the diagnosis.
2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
David Walsh
EMPLOYMENT LAW FOR
HUMAN RESOURCE
PRACTICE, 5E
2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license
distributed with a certain product or service or otherwise on a password-protected website for classroom use.
Performance Appraisals, Training
and Development
Chapter 16
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service or otherwise on a password-protected website for classroom use.
Chapter Outline
Performance Appraisals
Performance Criteria & Standards
Performance Appraisal Process
Feedback on Performance
Training and Development
Training Contracts
When is Training Legally Required
Selection of Trainees
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Performance Appraisals (1 of 4)
Regardless of the efficacy of performance
appraisals, they hold great legal
significance
The central legal concern is that they not
be discriminatory
In general, employers have no duty to
conduct performance appraisals
Employers cannot appraise only men and
not women, as such action would be
discriminatory
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Performance Appraisals (2 of 4)
Negative performance appraisals do not
constitute discrimination
However, if a biased negative appraisal
becomes the basis for the denial of an
employment opportunity, disparate treatment
discrimination can be alleged
Unwarranted negative performance appraisals
could constitute materially adverse actions
in cases of retaliation if they are used to
punish employees for exercising their rights
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Performance Appraisals (3 of 4)
Performance appraisals affect many
employment decisions, including

promotion,
training and development,
raises,
and more
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Performance Appraisals (4 of 4)
Courts will not review performance
appraisals to determine whether the
appraisal was correct
Only to determine if there is discriminatory
intent or other illegal motives
Recommended: Employers should
conduct performance appraisals regularly
and maintain credible, written
documentation of performance
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Performance Appraisals
Performance Criteria
(1 of 3)
Common performance criteria include

work quality and quantity;
attendance and punctuality;
judgment;
ability to work with others in a team;
leadership;
and so on
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Performance Appraisals
Performance Criteria
(2 of 3)
Employers are free to establish criteria
and standards of performance, but
must:
take into account the needs of disabled
employees;
be consistently applied;
be as objective as possible;
be job related and consistent with business
necessity
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Performance Appraisals
Performance Criteria
(3 of 3)
Employers can and should hold disabled employees
to the same standards of performance as
nondisabled employees who do the same jobs
Receipt of a reasonable accommodation should
not be held in any way against a disabled
employee
If a disabled employee is unable to perform a
marginal function of a job, that function should
be removed from the job and not be reflected
in performance ratings
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Performance Appraisals
Performance Appraisal Process

(1 of 4)
Lack of Consistency in Evaluations:
A performance appraisal which is inconsistent
with prior appraisals raises legal issues
After an employee has filed a charge, it appears
to be retaliation
Shortly before layoffs or a termination, it
appears to be pretext to justify the decision to
layoff or terminate
Performance appraisals must not be
manipulated and made more negative than
actual performance warrants
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Performance Appraisals
Performance Appraisal Process
(2 of 4)
Who Conducts Performance Appraisals?
Employers should provide training or written
instructions to those who conduct performance
appraisals
If coworkers or others also participate in
performance appraisals, they also require
instruction in good appraisal techniques and
legal issues
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Performance Appraisals
Performance Appraisal Process
(3 of 4)
Contents of Appraisals:
Appraisers should not shy away from criticism,
but their tone should be measured and
professional
Extreme language suggests hostility, and may
become the basis for a cause of action for
discrimination or defamation
Courts may view appraisals with both positive &
negative comments as an indictor of a lack of
bias
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Performance Appraisals
Performance Appraisal Process
(4 of 4)
Forced Distribution Method:
Forced distribution methods require that
predetermined percentages of employees be
placed into particular performance categories
Forced distribution rankings are often accompanied
by rigid policies calling for termination or other
adverse employment consequences for those
employees ranked in the lowest category
Forced distribution methods of performance appraisal
have seen wide use, although their popularity is
waning
Not surprisingly, these systems have become
the object of legal challenges
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Performance Appraisals
Feedback on Performance (1 of 2)
Employers should:
communicate performance appraisals to
employees,
provide an opportunity for discussion, and
and allow employees to respond to and appeal
them
Employers should not attempt to avoid
unpleasant confrontations by failing to
provide employees with feedback about
their performance and opportunities to
improve performance that are routinely
provided to other employees
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Performance Appraisals
Feedback on Performance (2 of 2)
Performance appraisal sometimes leads to
identification of deficiencies and placement
of employees on performance
improvement plans (PIPs)
Under a performance improvement plan,
an employee is given outcomes that must
be attained over some period of time
(usually short) with negative consequences
if not attained
A warning to shape up or ship out
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Training & Development
When is Training Required? (1 of 3)
Training and development programs
can make employees more productive and
help them advance in their careers
There are circumstances under which
training is legally required or highly
advisable
Significant legal questions can arise
regarding who receives training and who
pays for it
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Training & Development
When is Training Required? (2 of 3)
In general, employers have no duty to
train their employees
One important exception is training for safety
and health reasons
Over 100 OSH standards call for training
employees exposed to certain hazards; failure
to train would constitute a violation of the
OSH Act
Employees have a right to know about hazards on
the job
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Training & Development
When is Training Required? (3 of 3)
OSHs hazard communication
standard is based on the principle of the
employees right to know about the
dangerous chemicals they encounter on
the job so that they can take steps to
protect themselves
Chemical manufacturers, importers must
provide a material safety data sheet
for each hazardous chemical
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Training & Development
When is Training Required?
Other Circumstances
Firms that contract with the federal
government must comply with the Drug Free
Workplace Act (DFWA), and
inform employees about the drug-free policy and
dangers associated with drug abuse;
advise regarding available options for counseling,
rehabilitation, and employee assistance programs;
and advise potential penalties for drug violations.
Where 3rd parties may be injured, good training
is required to avoid claims of negligent
training
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Training & Development
Selection of Trainees
Many training & development opportunities are
offered on a limited basis and present questions
of selection
The successful completion of training is often
linked to promotions and raises
Much training received is on-the-job training
from coworkers
Another valuable form of training are
apprenticeship programs, combining
classroom instruction with work under the
guidance of an experienced coworker
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What Would You Do?
You are the HR manager of a small consulting firm.
One of your department managers has been having
trouble with a consultant (Janus) and has just
completed his first performance appraisal. She has
submitted it to you for your review before it
becomes part of the record. It contains the
following statements: 1) Janus is a bad singer stuck
in a one-note song. All of his consulting advice
recommends the same action. 2) Rather than give
honest advice, Janus says what people want to hear.
He is spineless. 3) Janus is a twerpy weasel, and
should be discharged. What would you do?
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Next:
Chapter 17 Privacy on the Job:
Information, Monitoring and Investigations
Does an employer have the right to read
employees emails?
Do employees have constitutional rights
granting them privacy?
The answers to these questions and more
are next.
2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
Instructors Notes:
Instructors notes for What Would You Do?
Students should recognize the personal animus displayed in
the colorful appraisal. The HR manager should consult with
the department manager and verify that the performance
issues are real, then recommend the removal of material
which could form the basis for a defamation claim, or simply
appear to be biased and unfair. The conclusions may remain
(All of his consulting advice recommends the same action.
and Rather than give honest advice, Janus says what people
want to hear.) But the following statements should be
removed from the appraisal: Janus is a bad singer stuck in a
one-note song. He is spineless. Janus is a twerpy
weasel
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Introduction:
Effective privacy policies are essential in every workplace. In the modern world, where businesses collect an enormous amount of employee data, monitor their actions and investigate wrongdoing allegations, privacy issues at work have become a growing concern. However, employers must learn about the legal principles and limits of incursions upon privacy to avoid potential legal complications and create privacy policies that protect employees’ rights. In this context, this article provides an overview of privacy protections in the workplace and the legal principles that govern these protections.

Overview of Workplace Privacy Protections:
Employers nowadays have access to a vast array of information about their employees, ranging from personal data to their online activity. To expand on this, the legal limits of incursions upon the privacy of workers have raised questions about their privacy at work. Employers should recognize the importance of privacy rights in the workplace and implement appropriate policies to safeguard their employees’ privacy rights.

Workplace Privacy Protections Constitutional Protection:
The US Constitution’s 4th Amendment provides public employees with privacy rights prohibiting unreasonable searches and seizures but with limits. Employers need not establish probable cause or obtain warrants before conducting workplace searches. It is essential to establish privacy policies that educate employees about the limits of their privacy rights in the workplace. The reasonable expectation of privacy is a vital component that employees must bear in mind when making privacy claims based on the constitution and other grouds.

Objectives:
– To understand workplace privacy protections and policies
– To determine the legal limits of incursions upon privacy in the workplace
– To analyze the necessity and implications of monitoring and surveillance of employees
– To evaluate the investigation of employee conduct and how it fits into the privacy policy

Learning Outcomes:
Upon completion of this content, learners will be able to:
– Explain the constitutional protection of privacy in the workplace
– Identify the legal limits to incursions upon privacy in the workplace
– Discuss the importance of establishing privacy policies that alert employees to the limits of their privacy rights
– Evaluate the necessity and implications of monitoring and surveillance of employees in the workplace
– Analyze how investigation of employee conduct fits into the privacy policy

Heading: Workplace Privacy Policy
Objective:
– To understand what a workplace privacy policy should look like
Learning Outcome:
– Create a comprehensive workplace privacy policy that includes limitations to employee privacy rights, guidelines for handling employee information, and procedures for monitoring and investigation of employee conduct

Heading: Monitoring Employee’s Internet Activity
Objective:
– To determine whether monitoring employee’s internet activity is necessary and justifiable
Learning Outcome:
– Analyze the implications of monitoring employee’s internet activity and decide whether or not it is justifiable in the workplace.

Heading: Investigations for Other HR Issues
Objective:
– To evaluate how investigations for other HR issues fit into the privacy policy
Learning Outcome:
– Determine the procedures and guidelines for conducting internal and external investigation of other HR issues such as harassment and discrimination, and evaluate how it fits into the privacy policy.

Solution 1: Designing a Workplace Privacy Policy

A workplace privacy policy is crucial for maintaining a healthy and respectful work environment. The following are some important aspects that should be included in a comprehensive privacy policy:

1. The policy must clearly state the purpose of data collection, the type of information collected, and how it will be used.
2. It is important to mention the measures taken to secure employees’ personal information and how long it will be retained.
3. The policy should highlight the disciplinary measures for violating privacy policies for employees, vendors, and independent contractors.
4. The policy should also mention the rights of employees to review their personal information and request changes where applicable.
5. Lastly, the company’s policy on monitoring and surveillance of employees must also be included.

Solution 2: Monitoring Employee Internet Activity

Monitoring employee Internet activity is a complex issue that requires careful consideration. Employers often want to ensure that their employees are not wasting their time, visiting inappropriate websites, or leaking company secrets to competitors. However, strict monitoring may be a violation of employee privacy.

Companies can strike a balance by having clear guidelines for Internet use and monitoring activities that relate to work productivity and security. The policy must make it clear that employees have no reasonable expectation of privacy while using company resources, and the monitoring will only involve the online activity that is work-related.

Companies that seek to monitor employee Internet activity must also ensure that they comply with privacy laws and regulations. Furthermore, employers should ensure that they are transparent about their online monitoring and have a legitimate business interest to conduct intrusive monitoring.

Suggested Resources/Books:

1. “Employee Privacy Law and Practice” by Amy L. Greenspan
2. “Workplace Privacy: Real Case Studies, Law, and Ethics” by Rebecca Herold
3. “Managing Employee Privacy: A Guide to Protecting the Company, its Assets, and its Employees” by Thomas L. Dunlap

Similar asked questions:

1. What are the legal boundaries of workplace privacy?
2. How can employers monitor employees without violating their privacy rights?
3. What are some best practices for protecting employee privacy in the workplace?
4. How do privacy laws and regulations differ for public vs private sector employers?
5. How do privacy policies and employee consent forms factor into protecting privacy in the workplace?

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