Research Paper on "Employee Privacy Torts Issues Relating"

Research Paper 25 pages (7119 words) Sources: 20

[EXCERPT] . . . .

If they are unable to lawfully withhold the information asked for, the act allows a complaint to be lodged in federal court since the right to access is enforceable.

The exemptions to this act are documents that are classified as secret because of national defense or foreign policy, documents related to internal personnel rules and practices, documents exempted by other statutes, trade secrets, confidential or privileged commercial or financial information, privileged inter and intra-agency memorandum, documents that would clearly lead to invasion of personal privacy, documents complied for law enforcement purposes, documents related to SEC regulated financial institutions and those which contain exempt information regarding gas and oil wells.

The act, however, does not apply to records held by the federal judiciary or the U.S. congress. It also does not apply to state or local government agencies, private businesses or individuals. This is the major reason why each state has varying statutes governing public access to their records. However, under the act, an agency can only respond to requests for records that it has created.

Property searches in the public sector

O'Connor v. Ortega

Magno Ortega, a doctor in a state hospital in California brought a law suit after Dr. Dennis O'Connor, the executive director found inculpatory evidence in the doctor's officer while he was on administrative leave pending an investigation of alleged misconduct. Some of the evidence uncovered was later used to impeach Dorothy Owen who had testified on behalf of the doctor at the hearing where he was appealing her dismissal, though unsuccessfully.

In O'Connor v. Ortega (1987), the court was split three ways on the issue in the case. Four Justices used a new sui generis approach to the reasonable expectation of privacy in the workplace in combination with the special needs exception that allows for reasonable workplace searches to be conducted without a warrant. Under this approach, the amendment rights in the Fourth Amendment are less applicable in the government workplace. Therefore public employees lose their right to privacy if they share their workspace with other employees or if there is a workplace policy in place that states that they have no right to privacy. This view was rejected by one Justice who stated that the Fourth Amendment rights were as applicable in the government workplace as any other place though the exceptions still applied. Four other Justices stated that the Fourth Amendment rights were as applicable in the government workplace as any other place, but rejected the exceptions to this rule. Since it was a 5-4 split, judgment was passed in favor of O'Connor and proceedings were held to fix damages. The court held that the realities of the workplace made a person have expectation of privacy when the search was being conducted by a supervisor instead of by a member of law enforcement. The court, however, upheld that there was a particular standard of reasonableness which was sufficient for workplace searches.

City of Ontario v. Quon

In City of Ontario v. Quon, a similar situation arose where police seargent Jeff Quon alongside other officers had sued the city. Quon had been exchanging messages with the other officers and sued their superiors and the pager service provider. They alleged violation of their privacy. Their primary defense was that they had been promised that the pager messages would not be audited if they reimbursed the City of Ontario for fees incurred when character limits were exceeded. The judgment was made in favor of the City of Ontario. The argument was that the Fourth Amendment rights of the employees had not been violated since the search of text messages was reasonable since it was motivated by work-related purposes and was not excessive in its scope. They argued that even if the three arguments placed in O'Connor v. Ortega were considered, the privacy of Quon was not violated.

Private sector employees property searches

Private sector employee rights are slightly different to those enjoyed by public sector employees. This is because the Fourth Amendment does not regulate the actions of private sector employers. Therefore, the employee has no right protecting them against searches and seizures conducted by private citizens or organizations which are not acting on the government's behalf. However, the Fourth Amendment does provide protection against warrantless searches being conducted by law enforcement officers. The law enforcement officers are not allowed to search personal property belonging to private employees without a valid search warrant. They can, however, get third-party consent of the employer or owner which allows them to enter the workplace and search without a warrant. Therefore, though the employee has a reasonable expectation of workplace privacy, the employer has broad third-party consent rights to search or let a law enforcement officer search the workplace. In this way, the employer has more legal authority to conduct a workplace search since they own the workplace and the Fourth Amendment rights do not apply to them. Some states have, however, provided the same privacy rights enjoyed by public employees to private employees. Many states, however, do not have laws that explicitly require employers to follow the same procedure when performing workplace searches.

The private employer is allowed to search the employee's clothing or other possessions when they are investigating theft of company property. However, there must be a legitimate reason for the search meaning that an item must be believed beyond doubt to have been stolen. The employer thus cannot conduct random searches of their employees without any reasonable suspicion of workplace misconduct or theft. In general, the employer is allowed to search locked file cabinets, desks or even personal property. However, in the case where an employee is required to purchase their own lock to guard the items stored in their locker, courts have ruled that searches in these areas are a violation of employee rights. Therefore in this situation the employee has reasonable expectation of privacy which is why they purchased their own locks. Courts have also argued that the search areas must be reasonable to the particular circumstance. For example if it is deemed that a computer has been stolen, it would not make sense to search purses, wallets, handbags, pockets or clothing since the computer is too large to be hidden in these areas.

In the situation where an employer has a clearly written policy that requires random and unannounced searches to be conducted, the employee relinquishes their right to privacy. This is because the policy acts as a notice of random and unannounced searches. However, the rationale behind the search may lead to the search being deemed as illegal, especially if the searches disregard other rights to privacy enjoyed by the employees. A good example of this is strip searches.

Refusal of a search cannot be deemed to be a valid reason to dismiss an employee. In Borse v. Piece Goods Shop

Invasion of property

Confidentiality of medical records

Health and medical records are considered to be highly sensitive. This is why they are protected by law. The Health Insurance Portability and Accountability Act (HIPAA) set the national standards relating to privacy of health records. HIPAA, however, only applies to medical records that are kept by health care providers, health clearing houses, health insurers, and health plans and only in the situation where the facility conducts some of their transactions electronically. The act regulates the use and disclosure of protected health information which is defined as any information that is held by any of the listed entities in relation to provision of health care, payment for health care and their health status. The individual also has a right to request for the information. According to the act, the listed entities are required to disclose these protected health information to the individual within 30 days of their request.

The act, however, allows the listed entities to disclose protected health information when it is required to facilitate treatment, payment or other health care operations even without express authorization from the patient. All other disclosures require express authorization from the individual. When the information is provided without the individual's authorization, it is important for the entity providing the information to make all reasonable efforts to disclose only the minimum necessary information to achieve the purpose for which the information is requested. Even when information is provided, the entities are required to notify the individual of the uses of the information and all disclosures should be documented.

As in the privacy act, HIPAA allows individuals to request that any of their information that is inaccurate is corrected. It also requires the entities holding such information to take all reasonable steps both administratively and physically to ensure that the information is held confidentially and that all communication with the individuals is also confidential. A privacy official must also be appointed to handle any complaints and make sure that the privacy policies and procedures are followed.

Listed entities are also allowed… READ MORE

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