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The relationship between and employer and employee is often a very precarious one. Each party has its own rights and it is important to find a balance where each party’s interests are well-protected. Contracts are often created to define what the employee-employer relationship will be, and they outline many of the rights of each party. However, there are also laws that government the privacy dynamic. This paper will discuss the rights on the employer and the rights of the employee, as well as the rights of the potential employees. For example, the employer has the right to know during the employee selection process information about the potential employee, while the potential employee has the right to privacy on much of the personal information. Furthermore, examples of the types of questions that can and cannot be asked will be presented. Balancing the rights of the employer, employee and potential employee can be grey at times, but specific guidelines are available to facilitate the smooth relationship among all parties.
Potential Employees
When a potential employee is being screened for employment, the employer is attempting to glean as much information as possible in order to make a decision about whether to hire the potential employee. However, many questions are illegal to ask. For example, an employer can ask about the place and length of the employer’s current and previous address, but they cannot ask the specific location of a foreign address that would indicate the employee’s national origin (What you, 2013). Also, an employee is able to ask whether the potential employee is younger than the company’s normal retirement age, but they cannot ask questions that would identify a person that is between the ages of 40 and 60 (What you, 2013).
Employers are limited to ask questions from the potential employees about information that is relevant to the job; for example, the company’s programs, mission and achievements. The location of the job is also an important factor, and for that reason it is important for the employer to know about where the employee is living and for how long. The employer also needs to know about the potential employee’s qualification, experience, education, abilities and interests. Also, the problems that the employee had in previous work situations is important. The topic of religion, race and disability can be brought up by the candidate, but it is up to the candidate to discuss it, and the information cannot be used to determine whether the candidate will be hired (What you, 2013). Potential employers are not allowed to ask about color, national origin, sex, race, religion, sexual orientation, age, disability or ancestry. The potential employer also cannot ask questions to a candidate of one gender, but not ask the same of the candidate of a different gender. The length of time that the candidate intends to work also cannot be asked, nor can the potential employer make reference to the candidate’s personal happiness (What you, 2013). These represent a few of the larger ideas surrounding the recruitment process, but are not all encompassing.
With potential employees, it is important to note the employment testing that is permitted. Some employers execute everything from psychological evaluations to urine tests. Many of these practices have been challenged by various civil rights groups and courts. The genetic tests are likely the most controversial. “These tests can detect the presence of genetic abnormalities in healthy individuals that may place those individuals at increased risk for developing certain diseases” (Andre & Velasquez, 2010). The tests can be used to screen the potential employees, and those with better genetic makeup are often more highly valued than other employees. The critics of such testing say the traits that are exposed through the DNA samples are not related to work (Andre, 2010).
Employees
In order to determine whether an employee-employer relationship exists – and to clearly lay out when the guidelines that will be discussed can be used between an employer and employee – several factors can be investigated. For example, the person is being paid on a per diem basis instead of on a flat fee; work is being performed in regular work schedule; performing work under supervision; furnishing an individual with supplies or equipment; performing duties that are assigned by the employer; and the employee is being assigned tasks on a continual basis; the worker is contracted regularly (Employee-employer, 2013).
Technology
Technology is a major component that has changed much of the focus of employee privacy. Specifically, email is a major development that can potentially compromise an employee’s privacy rights. Employees regularly use their email during business hours. The employer is the provider of the email service, but the information that is being communicated is often private, which can create a conflict and questions about the limits of the employer’s right to information about the employee, and the employee’s right to have information kept private. Many employees do not know the extent of their privacy rights in relation to the email accounts they have been assigned by their employer. “In fact, many employees operate under the false assumption that personal email messages sent from work are protected from their employer’s scrutiny” (Duke, 2001). Many programs are now available that allow the employer to access the employee’s hard drive, look into the cache and investigate the employee’s emails (Schulman, 2010). Even email messages that the employee deletes are often stored on the computer, and available for the employer to access through the hard drive.
In 2009, a software package became available on the market, and it allowed employers to watch over their employees’ Internet use. The software consists of a database of 45,000 websites that are rated as “unproductive,” “productive,” and “neutral,” and employees are rated based on what they are browsing. The program identifies those who appear to be searching the web for information that is not related to work. The program is called LittleBrother (Schulman, 2010). The software reveals the capabilities that technology has in the attempt to control employee time and productivity. Some other programs block websites that are not productive.
What are the rights of employee privacy on computers? Employees have few options when it comes to protecting their privacy when using company software and hardware for email and Internet browsing. In fact, the most recent federal law that is relevant to the situation is the 1986 Electronic Communications Privacy Act. The act prohibits unauthorized people from intercepting the electronic communications. But the law exempts the service providers in the provisions, and this is a common interpretation that includes employers who provide the Internet and email access (Schulman, 2010). A bill was proposed from 1993 to 1995 that would require employers to inform employees that they are being monitored, but it never came to a vote. Only a few employees have taken their employer to court over the ordeal. The court typically supports the employer and says the employees are using the employer’s property and the employees should not expect privacy. Private communication is afforded to employees during their own time, and on their own equipment, the courts have asserted (Schulman, 2010). In one example, a former employee named Michael Smyth was fired after his employer was monitoring several of his emails that were exchanged with his supervisor. One email threatened to “kill the backstabbing bastards” in the sales management. The courts sided with the employer, saying the company had a responsibility to prevent unprofessional and inappropriate conduct at the workplace (Schulman, 2010).
Employment laws are constantly evolving, and a major part of that evolution is the amount of privacy to which an employee is entitled. While there are long established rules government what an employer can and cannot know – and they are usually guided on whether the information is relevant to the execution of the job – technology is causing a shift in dynamics, and this brings up issues not previously tackled by employment privacy laws. Email and Internet monitoring could be just the beginning of what is to come, and this evolution will continually demand the attention of policymakers to protect both the employee’s right to privacy, and the employer’s right to attain information relevant to preserving the firm’s interests.
References
Andres, C. and Valasquez, M. (2010). Read my genese: genetic screening in the workplace. Santa Clara University.
“Employee-employer relations.” (2003). Bloomsburg University of Pennsylvania.
Schulman, M. (2010). Little Brother is watching you. Santa Clara University.
“What you can ask and what you can’t –legal/illegal interview questions. (2013). Michigan Technology University.
