Workplace Privacy, Autonomy, and Dignity in Colorado: Part Ii

• Publication year: 1998
• Pages: 5

27 Colo.Law. 5 Colorado Lawyer 1998.

1998, December, Pg. 5. Workplace Privacy, Autonomy, and Dignity in Colorado: Part II

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Vol. 27, No. 12, Pg. 5

The Colorado Lawyer
December 1998
Vol. 27, No. 12 [Page 5]

Articles

Workplace Privacy, Autonomy, and Dignity in Colorado: Part II
by Craig M. Cornish

Craig Cornish practices in Colorado Springs with Cornish & Dell'Olio. He has written extensively on workplace privacy issues and serves as co-chair of an American Bar Association subcommittee on workplace privacy. The author wishes to thank Andrew D. Ringel of Hall & Evans L.L.C for his valuable assistance in the preparation of this article

This is the second part of a two-part article on privacy in the workplace. Part I discussed some of the philosophical and theorectical issues extant in the jurisprudence of workplace privacy.1 This Part II is more practical and mechanical. It examines Colorado developments in workplace privacy law, and identifies several remedial and procedural issues which may be encountered in the course of litigating workplace privacy cases

COLORADO PRIVACY DECISIONS

The following section catalogues by subject matter federal and state privacy cases for Colorado that are likely to have a direct bearing on workplace privacy cases. Many of these cases did not originate in the workplace context. To date, Colorado courts of record have decided only a handful of true workplace privacy cases. Since such cases are of relatively recent vintage nationally, and are truly in their nascent period in Colorado, no attempt is made here to analyze, suggest trends, or make predictions on how Colorado courts will rule on future privacy issues. Numerous substantive and procedural issues remain to be developed in this area of jurisprudence.2

Employee Access to His or Her Own Personnel Records

With some exceptions, the Privacy Act allows certain persons access to records that pertain to them.3 Although the law enforcement exception generally bars access to federal employee investigative files used to determine whether administrative action should be taken against the employee, the law enforcement exception does not apply where the investigative file causes the federal employee to lose a right, privilege, or benefit. Accordingly, in Viotti v. United States Air Force,4 the court concluded that a forced early retirement deprived an Air Force officer of a right, privilege, or benefit and, therefore, the investigative file that led to this result was accessible to the officer.

Criminal Records

In United States Dept. of Justice v. Reporter's Committee for Freedom of Press,5 the U.S. Supreme Court held that, under the Privacy Act, criminal histories or rap sheets maintained by the Department of Justice could not be disclosed to the general public because disclosure of such a compilation of records would constitute "a clearly unwarranted invasion of privacy" of the individual who is the subject of the record.6 In Nilson v. City of Layton, the U.S. Court of Appeals for the Tenth Circuit ("Tenth Circuit") concluded that a police officer's disclosure to the media that a school teacher had been previously arrested and convicted of a crime, even though the records had been expunged pursuant to state court order, did not violate the teacher's privacy.7 In so holding, the court noted, "[I]nformation readily available to the public is not protected by the constitutional right to privacy. Consequently, government disclosures of arrest records, judicial proceedings, and information contained in police reports, do not implicate the right to privacy."8

Diaries

In Sheets v. City of Salt Lake City,9 the Tenth Circuit discussed the constitutional protection afforded information in a person's diary. Sheets involved an allegation by the husband of a murder victim that a police officer's disclosure of his deceased wife's diary to the author of a book about his wife's murder violated his federal constitutional right to privacy. The diary was turned over to the police by the husband with an understanding that it would remain confidential. Against the argument that it was not the husband's diary that was disclosed to the public, the court held that "information conveyed to one's spouse or that one's spouse has observed about one's character, marriage, finances, and business is to be personal in nature and subject to a reasonable expectation of privacy."10 In response to the defendant's argument that the information disclosed from the plaintiff's wife's diary was not embarrassing to the plaintiff, the court said: "Information need not be embarrassing to be personal and whether it is sufficiently personal to be protected is, in this case, a legitimate question for the jury."11

Drug Testing

The U.S. Supreme Court has decided four drug testing cases, three of them involving employment.12 These cases hold that drug testing by urinalysis is a search because both the analysis of a person's biochemistry and forced urination separately intrude on reasonable expectations of privacy.13 These cases continue the development of a new Fourth Amendment doctrine referred to as the "special needs" doctrine. Under the "special needs" doctrine, once the government shows that the purpose for a search is other than for law enforcement, whether the warrant, probable cause, or individualized suspicion requirements apply to the search is determined by balancing the intrusiveness of the search against the government's need for the search.14 In the Supreme Court's latest pronouncement on drug testing, the bottom line of the opinion read:

[W]here. . . public safety is not genuinely in jeopardy, the Fourth Amendment precludes the suspicionless search, no matter how conveniently arranged.15

In an interesting interpretation of the special needs doctrine, the Tenth Circuit recently held that the first inquiry is whether the government's special need is warranted, and only if that question is answered in the affirmative should the court balance competing interests. In 19 Solid Waste Dept. Mechanics v. City of Alburquerque,16 the Tenth Circuit held that the preliminary special needs inquiry requires the government to prove that its need to drug test is real and that the drug testing method selected is an effective means of furthering the proferred need to test. Otherwise, the drug test is invalid under the Fourth Amendment.

In City of Denver v. Casados,17 the Colorado Supreme Court clarified that nonsafety-sensitive public employees may not be drug tested for off-duty illegal drug use, even if reasonable suspicion of off-duty use is present, but safety-sensitive public employees may be tested for off-duty illegal drug use, provided the employer has objectively based reasonable suspicion of such use.18 All public employees may be required to submit to drug tests based on reasonable suspicion that the employee is under the influence of drugs while on duty.19 However, in one case, the Tenth Circuit has held that a public employer who tests a truck driver returning from a one-year medical leave, without prior notice and without a policy authorizing such testing, violates the employee's Fourth Amendment rights.20

Two Tenth Circuit decisions have addressed employment drug testing issues and the common law right to privacy. In Mares v. Con Agra Poultry Co., Inc.,21 the court held the plaintiff failed to present sufficient evidence in opposition to a motion for summary judgment to show that her termination for refusing to disclose her current medications as part of a drug testing procedure was unreasonably intrusive and highly offensive to a reasonable person. She apparently filed no affidavits in response to the defendant's affidavit explaining the reason for its medication disclosure requirement.22

In Roe v. Cheyenne Mountain Conference Resort,23 the Tenth Circuit held that an employer's requirement of random drug testing of nonsafety-sensitive employees, conditioning all prescription drug use on a supervisor's approval, and banning all nonprescription drugs in an employee's system while at work presented a "substantial possibility" that Colorado state courts would hold such policies highly offensive to a reasonable person and in violation of the common law right of privacy.24 In a closely related case, the Colorado Court of Appeals in Doe v. High-Tech Institute, Inc.25 held that a student's common law right to privacy was violated when a school official caused the student's blood to be tested for HIV, without the student's consent, during otherwise consensual testing of the student's blood for rubella.

One of the requirements that any employee must overcome to state a viable privacy claim for a Fourth Amendment violation is standing to sue. Where an employee is adversely affected by his or her refusal to submit to a drug test, that employee probably has standing to challenge the validity of the drug testing order and the adverse consequences of refusing the order.26

The Tenth Circuit also has held that the drug testing provisions of the FAA regulations do not create a private cause of action against employers who violate them.27

Electronic Surveillance

In Thompson v. Johnson County Community College,28 the Tenth Circuit held that a silent video camera in a locker room did not implicate rights under Title I of the Electronic Communications Privacy Act.29 The court also held that the area around a locker did not give rise to a reasonable expectation of privacy under the Fourth Amendment from a video surveillance camera because the area was accessible without restriction to others.30

Financial Information

Collection of financial information about applicants and...