Privacy Considerations in the Workplace

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ELIMINATE EXPECTATIONS OF PRIVACY

MAINTAIN LEGITIMATE REASONS FOR WORKPLACE MONITORING

A. GENERAL RULES REGARDING WORKPLACE EXPECTATIONS OF PRIVACY

• 1. Invasion of Privacy

Ohio first recognized the tort of invasion of privacy in 1956.   Housh v. Peth (1956), 165 Ohio St. 35, and described the principle of the right of privacy in Ohio as follows:

1. The right of privacy is the right of a person to be let alone, to be free from unwarranted publicity, and to live without unwarranted interference by the public in matters with which the public is not necessarily concerned.

2. An actionable invasion of the right of privacy is the unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.  Id. at paragraphs one and two of the syllabus. See, also, Sustin v. Fee (1982), 69 Ohio St.2d 143.

Housh articulated three types of invasion-of-privacy claims:

[1] the unwarranted appropriation or exploitation of one's personality,

[2] the publicizing of one's private affairs with which the public has no legitimate concern, or

[3] the wrongful intrusion in one's private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities."

• 2. Workplace Privacy

Generally speaking, Ohio does not recognize an "expectation of privacy" in the workplace.

An employee's expectation of privacy in the workplace must be assessed in the context of the employment relation on a case-by-case basis. O'Connor v. Ortega (1987), 480 U.S. 709, 715, 107 S.Ct. 1492-96.

The operational realities of the workplace may make some employees' expectations of privacy unreasonable. Id. at 717; 107 S.Ct. at 1497.

The workplace includes those areas and items that are related to work and are generally within the employer's control, including hallways, offices, locker rooms, break rooms, cafeterias, desks, and file cabinets. See id.; Thompson v. Johnson Cty. Community Coll. (D.Kansas 1996), 930 F.Supp. 501, 507, affirmed (C.A.10, 1997), 108 F.3d 1388.

• 3. Workplace Privacy in Ohio

3904.22 Authorized disclosures of personal or privileged information - immunity.

No cause of action in the nature of defamation, invasion of privacy, or negligence shall arise against any person for disclosing personal or privileged information in accordance with sections 3904.01 to 3904.22 of the Revised Code, nor shall such a cause of action arise against any person for furnishing personal or privileged information to an insurance institution, agent, or insurance support organization. However, this section provides no immunity for disclosing or furnishing false information with purpose to injure any person.

4111.14 Implementing constitutional minimum wage authority.

(A) Pursuant to the general assembly's authority to establish a minimum wage under Section 34 of Article II, Ohio Constitution, this section is in implementation of Section 34a of Article II, Ohio Constitution. In implementing Section 34a of Article II, Ohio Constitution, the general assembly hereby finds that the purpose of Section 34a of Article II, Ohio Constitution is to:

(4) Protect the privacy of Ohio employees' pay and personal information specified in Section 34a of Article II, Ohio Constitution by restricting an employee's access, and access by a person acting on behalf of that employee, to the employee's own pay and personal information.

109.571 National crime prevention and privacy compact.

The "national crime prevention and privacy compact" is hereby ratified, enacted into law, and entered into by the state of Ohio as a party to the compact with any other state that has legally joined in the compact as follows:

                        The contracting states agree to the following:

• (a) This compact organizes an electronic information sharing system among the federal government and the states to exchange criminal history records for noncriminal justice purposes authorized by federal or state law, such as background checks for governmental licensing and employment.
• B. POLICIES REGARDING ELECTRONIC COMMUNICATIONS
• 1. Ohio has no requirements on either an employee's expectation of privacy with respect to emails, nor prohibitions on an employer's right to view emails or voicemails.
• 2. Roberts v. Murawski, 2007-Ohio-3555

1st District Court of Appeals of Ohio, Hamilton County
Decided on July 13, 2007

Roberts, a salesperson for CB Real Estate Group asked an administrative assistant for CB to route Roberts' cell call through CB to an outside competitor.  It was somehow taped as a voicemail on the assistant's phone.  The substance of the call was critical of CB's management.  The administrative assistant forwarded the call to two CB managers, including Robert's supervisor.  When confronted with it, Roberts denied it.  Thereafter, CB terminated Robert's for dishonesty.  He brought suit for, among other things, invasion of privacy over the telephone call.  The 1^st District upheld summary judgment, finding:

...summary judgment was properly granted on Roberts's invasion-of-privacy claims against all the defendants. The Ohio Supreme Court recognized three types of invasion-of-privacy claims in Housh v. Peth: "[1] the unwarranted appropriation or exploitation of one's personality, [2] the publicizing of one's private affairs with which the public has no legitimate concern, or [3] the wrongful intrusion in one's private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities."9 Roberts's claims were of the third type.   Roberts's complaint alleged that CB ...  had "deliberately, intentionally, willfully, wrongfully, and unlawfully" intercepted and intruded upon his privacy. But he offered no evidence that the recording of his conversation on Miller's voicemail was anything but unintentional. And he did not demonstrate that the recording of the phone call and the subsequent playing of it to a limited number of supervisory employees at CB would have caused outrage or mental suffering, shame, or humiliation to a person of ordinary sensibilities. Roberts stated that he could not even recall the conversation. And according to Roberts's deposition, his humiliation was caused by the culmination of events that led to his termination at CB, not just by the revelation about the phone call. We conclude that, with the evidence construed in the light most favorable to Roberts, reasonable minds could have come to but one conclusion-that he had not demonstrated that the defendants had invaded his privacy.

• C. EMPLOYER'S RIGHT TO KNOW vs. EMPLOYEE PRIVACY DURING THE HIRING PROCESS
• 1. Applications & Interviews
• a. ADA
• b. Other class-protection issues
• c. Cort v. Bristol-Myers Co. (Mass. 1982), 431 N.E.2d 908:

"Careful balancing must be made between privacy interests and the need for the request information, its materiality, and its relevance.  Id. at 915.

We would not go so far as to say that an employer would always be liable for discharging an employee for his refusal to answer questions not relevant to its business purposes.  In public policy terms, it is the degree of intrusion on the rights of the employee which is most important.  In measuring the nature of the intrusion, at least as to its reasonableness (but perhaps as well as to its substantiality and seriousness), the nature of the employee's job is of some significance.  The information that a high level or confidential employee should reasonably be expected to disclose is broader in scope and more personal in nature than that which should be expected from an employee who mows grass or empties waste baskets.  A salesman responsible for the sale of drug products to hospitals, doctors, and pharmacists falls in the middle of this range, but toward its upper side.  The temperament and dedication of a salesman are important factors in his effectiveness, and questions bearing on these subjects are certainly reasonable and should be expected. Id. at 913.

• 2. Credit Checks

The Fair Credit Reporting Act [15 USC §1681] regulates disclosure by consumer reporting agencies.

The Act permits a consumer reporting agency to issue a consumer report only under statutorily permissible circumstances.  Employment purposes, is permitted under the Act, when it is used "for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee."

• - "Consumer report" does not require notice to employee
• - "Investigative Report" may require notice to employee.

If asked by the employee, the employer is required to disclose the nature and scope of the investigation.

• 3. Background Checks

  Employers enjoy a qualified privilege to report experiences with an impressions about a former employee to potential employers, which is defense to defamation, privacy or interference in prospective economic advantage actions, unless abused. Erickson v. Marsh & McLennan Co., (NJ 1990), 569 A.2d 793.

• 1. Defamation: a false statement of fact. Opinions are generally not defamatory unless it implies a factual basis. Belleveau v. Rerick (RI 1986), 504 A.2d 1360.
• 2. Abuse. Acting with actual ill-will, knowledge of the falsity of the remarks or with reckless or wanton disregard for its truth.
• 3. Tohline v. Central Trust Co., N.A. (1988), 48 Ohio App.3d 280

Appellant was a manager for GE.  He maintained a credit union account which was serviced by Owl machines.  One day he withdrew money from the machine but was not issued a receipt.  The following day he learned that the machine tracked his activities as both a deposit and withdrawal of the same sum.  Appellant, however, had not made a deposit.  He then successfully repeated the exercises and thereafter informed a co-worker about his feats.  Eventually the matter reached Appellant's supervisors who came to doubt Appellant's judgment and character.  Appellant was given the option to resign or be discharged.  He chose discharge.

Following suit for, among other things, invasion of privacy, the court of appeals concluded "General Electric and its employees did no more than investigate by asking appellant questions, which does not constitute a wrongful intrusion where the appellant's activities potentially cast a pall on his trustworthiness at work."  Id at 285.

• D. COMPUTER & TELEPHONE MONITORING IN THE WORKPLACE
• 1. Electronic Communications Privacy Act of 1986 [18 USC §§2510-2521] prohibits the "intentional" interception of "any wire, oral or electronic communication", the use of an electronic device to effect that end by means of transmission, and the intentional disclosure of the contents of such communications "knowing or having reason to know that the information was obtain" through an interception in violation of the Act.

Excluded from this definition:

Any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business. 18 USC §2510(5)(a)

2 conditions must be met:

a.  the intercepting equipment must be furnished by the provider of communication service or furnished by the user for connection to the facility and used in the ordinary course of the user's business; and

b.  the interception itself must be in the normal course of the user's business.

c.   applies to email

• 2. 2933.52 Interception of wire, oral or electronic communications. (A) No person purposely shall do any of the following:

(1) Intercept, attempt to intercept, or procure another person to intercept or attempt to intercept a wire, oral, or electronic communication;

(2) Use, attempt to use, or procure another person to use or attempt to use an interception device to intercept a wire, oral, or electronic communication, if either of the following applies:

(a) The interception device is affixed to, or otherwise transmits a signal through, a wire, cable, satellite, microwave, or other similar method of connection used in wire communications;

 (b) The interception device transmits communications by radio, or interferes with the transmission of communications by radio.

(3) Use, or attempt to use, the contents of a wire, oral, or electronic communication, knowing or having reason to know that the contents were obtained through the interception of a wire, oral, or electronic communication in violation of sections 2933.51 to 2933.66 of the Revised Code.

• E. DRUG TESTING

1. 1. Drug Free Workplace Act of 1988
2. a. Applies to federal contractors & grantees
3. b. Must prohibit & post a public notice of prohibition against the use or possession of any "controlled substance" in the workplace.
4. c. Employers must make employees aware of this policy and sanctions for non-compliance.
5. d. Employers must establish a "drug-free" awareness program.
6. e. Employees are required to inform their employer of any conviction for a violation of a drug statute occurring in the workplace, whereupon the employer must either impose discipline, up to and including termination or require the employee to participate in an approved drug abuse or rehabilitation program.
7. f. Employer are required the actions they have taken to the relevant contracting or granting agency.

• 2. Ohio Revised Code §4112.02(Q)(2)(d)

(Q)(1)(a) Except as provided in division (Q)(1)(b) of this section, for purposes of divisions (A) to (E) of this section, a disability does not include any physiological disorder or condition, mental or psychological disorder, or disease or condition caused by an illegal use of any controlled substance by an employee, applicant, or other person, if an employer, employment agency, personnel placement service, labor organization, or joint labor-management committee acts on the basis of that illegal use.

(2) Divisions (A) to (E) of this section do not prohibit an employer, employment agency, personnel placement service, labor organization, or joint labor-management committee from doing any of the following:

(a) Adopting or administering reasonable policies or procedures, including, but not limited to, testing for the illegal use of any controlled substance, that are designed to ensure that an individual described in division (Q)(1)(b)(i) or (ii) of this section no longer is engaging in the illegal use of any controlled substance;

(b) Prohibiting the illegal use of controlled substances and the use of alcohol at the workplace by all employees;

(c) Requiring that employees not be under the influence of alcohol or not be engaged in the illegal use of any controlled substance at the workplace;

(d) Requiring that employees behave in conformance with the requirements established under "The Drug-Free Workplace Act of 1988," 102 Stat. 4304, 41 U.S.C.A. 701, as amended;

(e) Holding an employee who engages in the illegal use of any controlled substance or who is an alcoholic to the same qualification standards for employment or job performance, and the same behavior, to which the employer, employment agency, personnel placement service, labor organization, or joint labor-management committee holds other employees, even if any unsatisfactory performance or behavior is related to an employee's illegal use of a controlled substance or alcoholism;

• 3. Circumstances of Drug Testing

Omnibus Transportation Employee Testing Act

• a. Pre-Employment
• b. Periodic
• c. Probably Cause
• d. Random
• e. Post-Injury
• f. Return-to-work
• 4. Cleveland Bd. of Edn. v Internatl. Bd. of Firemen & Oilers Local 701 (1997), 120 Ohio App.3d 63

Cleveland Board of Education appealed an arbitrator's decision  re-instating an employee who was discharged for using cocaine while working.  Trial court vacated the arbitration and the union appealed.  8^th District Court of Appeals upheld discharge, stating:

It cannot be seriously contended that cocaine use by a school bus mechanic performing a safety-related function is not "just cause" for immediate discharge. An employer does not have to tolerate this condition or give unfaithful employees a second chance. Drugs have become a scourge in the workplace as in society as a whole. A message that a cocaine user can get caught once and escape discharge undermines the public policy behind encouraging voluntary rehabilitative care and minimizes the serious nature of the offense.

• 5. Seta v. Reading Rock, Inc. (1995), 100 Ohio App.3d 731

[Discretionary appeal to the Supreme Court of Ohio was not allowed in (1995), 73 Ohio St.3d 1413, 651 N.E.2d 1310. ]

Employee brought suit claiming discharge for using pot was a violation of public policy because the employer's drug testing policies, violation of which called for mandatory discharge, created an implied contract.  Court disagreed.

• F. OTHER WORKPLACE PRIVACY ISSUES
• 1. Medical Screening & Testing
• 2. Access to medical records

Ohio Revised Code §4113.23 

Employers (physicians, medical providers, etc.) cannot refuse to provide copy of medical records and information to an employee or his/her representative.

• 3. Surveillance

Brannen v. Kings Local School Dist. Bd. of Edn. (2001), 144 Ohio App.3d 620

Video cameras installed in break room did not violate privacy concerns.  The video camera was installed solely for the purpose of confirming or denying the allegations. The video camera created only a visual record of the activities in the break room; it did not record private conversations. The camera was operational only between 10:00 p.m. and 6:00 a.m. for one week. The camera recorded only that which Irvin himself could have observed in person. "[T]he mere fact that the observation is accomplished by a video camera rather than the naked eye, and recorded on film rather than in a supervisor's memory, does not transmogrify a constitutionally innocent act into a constitutionally forbidden one." citing, Vega-Rodriguez v. Puerto Rico Tel. Co. (C.A.1, 1997), 110 F.3d 174, 181

• 4. Searches
• a. Branan v. Mac Tools, 2004-Ohio-5574

Appellant was a manager with Mac Tools.  Due to disappointing sales and concerns about breach of confidential information, Mac Tool's president conducted an investigation which ultimately led to Appellant's termination.  Appellant brought suit alleging, among other things, invasion of privacy.  This was predicated on the fact that Mac Tool went through his brief case and sent the investigative agency to his home to take pictures.

The court performed an outstanding analysis of these issues:

Assuming that in fact the asset protection team was dispatched to take photographs of appellant's house, we note that courts have generally held that the invasion complained of must involve the "viewing of affairs that are private and not in public view." York v. G.E. Co. (2001), 144 Ohio App.3d 191, 194. Photographing of appellant's house or vehicles parked in front of the house would not constitute an invasion of privacy under these conditions. Since appellant has not alleged any photography of the interior of his house, these actions alone would not sustain the tort of wrongful invasion of privacy.

{¶44}      With respect to the alleged search of appellant's briefcase, the question is whether appellant had a reasonable expectation of privacy in the briefcase after he abandoned it at the office and left the premises on the day of his interview with the Asset Protection Team. Appellees rely on Peitsmeyer, supra, in which this court affirmed a summary judgment in favor of defendants where the alleged invasion of privacy consisted of the employer entering the employee's locked office, unlocking desk drawers, and searching a storage locker and discarding some personal belongings, including personal and sensitive items related to the plaintiff's son's legal troubles. We concluded that the plaintiff had no reasonable expectation of privacy with respect to his office furniture because he knew that the employer had master keys to the office and the plaintiff himself often left his office door unlocked.

{¶45}      We find, however, that a clear distinction must be drawn between the contents of a personal briefcase and personal items kept in a suite of office furniture belonging to the employer and located on the premises of the employer. Although appellees argue that, because appellant left the unlocked briefcase in his office upon leaving the premises, it must be concluded that he had abandoned all expectation of privacy, the question of whether the item is actually locked is not of itself conclusive of whether an expectation of privacy is retained. Moreover, in the present case, there is no evidence that employees other than appellant had the key to his briefcase, or routinely had access to it, so that the implied right of access found in Peitsmeyer because of the employer's possession of master keys has no parallel here. Likewise, while it can be argued that appellants might also have a diminished expectation of privacy because he was aware that his e-mail and cell phone records were being examined by his employer, he had heard and believed rumors that the employer was employing listening and monitoring devices in order to catch corporate spies, and that Aden had announced that he would go to great lengths to suppress such loss of proprietary information, none of these intrusive possibilities would necessarily compel appellant to abandon his reasonable belief that the privacy of his personal items in his personal briefcase would be invaded. Appellant's testimony was that he considered his briefcase his personal property, that he had no intention of abandoning his right to privacy therein, and that he considered it secure from intrusion or search without his permission.

{¶46}      Viewed as a whole, the evidence is sufficient to create a genuine issue of material fact as to whether appellant retained a reasonable expectation of privacy in his briefcase, and whether that expectation was violated by the alleged search of the briefcase by appellees. We accordingly find that the trial court erred in granting summary judgment for appellees on appellant's wrongful invasion of privacy claim with respect to the alleged search of appellant's briefcase, but not with respect to the alleged surveillance of his house. Appellant's fourth assignment of error is accordingly sustained to this extent and otherwise overruled

• 5. Other interesting privacy cases

JESSE M. COATS PLAINTIFF-APPELLANT v.CUYAHOGA METROPOLITAN HOUSING AUTHORITY, ET AL. DEFENDANTS-APPELLEES  No. 78012  Civil appeal from Court of Common Pleas, Case No. CV-386616.   April 12, 2001

Plaintiff brought firearm to workstation.  No right to privacy found

ROBERT HALL, Plaintiff-Appellant, vs. THE JEWISH HOSPITAL OF CINCINNATI, Defendant-Appellee.  APPEAL NO. C-990571; TRIAL NO. A-9801617

Date of Judgment Entry on Appeal: June 2, 2000 COURT OF APPEALS FIRST APPELLATE DISTRICT HAMILTON COUNTY, OHI0

No invasion of privacy when hospital disclosed employees drug addiction.  " ... sometimes a person's physical and mental condition becomes a legitimate matter of interest in the workplace."

RECOMMENDED POLICIES

1  Obtain release for credit check

1  Notify job applicant that all information contained within the employment application is subject to background investigation

1  Maintain disclosure on both the employment application and in handbook advising employees of limited privacy expectations

1  Maintain policies on employee access to personnel records

1         DRUG TEST!

1         Investigate claims