Privacy Issues Affecting Employers, Employees, and Labor Organizations

AuthorCharles B. Craver
PositionFreda H. Alverson Professor of Law
Pages1057-1078

Page 1057

    Freda H. Alverson Professor of Law, George Washington University. J.D., 1971, University of Michigan; M. Indus. & Lab. Rels., 1968, Cornell University School of Indus. & Lab. Rels.; B.S., 1967, Cornell University.
Introduction

Thirty years ago, I wrote an article which dealt in part with privacy questions arising in employment environments.1 I discussed the right of employers to search employees, their possessions, and their lockers. I explored employer monitoring of workers through direct supervisory observation and through the use of closed-circuit television cameras. I also examined the frequent administration of polygraph tests in employment settings. It is difficult to comprehend the employment environment changes and the technological developments that have occurred since the publication of that article.

Since private employers are not formally constrained by constitutional provisions due to the absence of state involvement, I discussed the ways in which labor arbitrators treated alleged privacy invasions under collective bargaining agreements. When I published that article in 1977, 22.6% of nonagricultural workers were labor union members.2 This meant that almost one-quarter of private sector employees enjoyed contractual protection against disciplinary actions that did not constitute "just cause" or that were based upon improper employer privacy invasions. Nonunion firms often followed similar practices to discourage their own workers from contemplating unionization. Over the past thirty years, the union membership rate has declined from 22.6% to 7.8%.3 Over ninety percent of private sector personnel no longer enjoy the privacy protections afforded by collective bargaining relationships. Under common law doctrines, they constitute "at-will" employees who can be terminated by their employers at any time for good Page 1058 cause, bad cause, or no cause.4 As a result, they must rely entirely upon legislative and judicial doctrines to provide them with protection against unreasonable employer activities.

Almost every contemporary employment setting provides employees with access to e-mail and the Internet. These developments allow workers to communicate with each other electronically, and to reach_and be reached by_parties from around the world. Employees can easily contact union organizers, and outside organizers can communicate directly with them. To what extent may firms limit such worker-to-worker or worker-to- organizer communications?

Workers can easily access millions of Internet sites. While most of these are benign, some are offensive to business firms concerned about their public images. May employers restrict non- business-related employee use of e-mail systems or limit their right to access Internet sites company officials find offensive? How can firms prevent the improper dissemination of trade secrets or other confidential information through these electronic media? Workers often wish to know whether they are being treated the same as other similarly situated employees, so employees compare compensation packages. May employers discipline individuals who share such personal and confidential information with others?

Years ago, employers could ask job applicants and current employees about their medical histories, and they could condition employment upon the satisfactory completion of pre-hire medical examinations. Although the Americans with Disabilities Act restricts some of these intrusive measures,5 employers may still require individuals to submit to general medical examinations after they have been offered employment. If they discover latent conditions or genetic predispositions to possibly disabling maladies, may they refuse to employ such persons? Can employees use other methods to determine which job applicants might be dishonest or may possess undesirable personality traits?

Once a majority of workers in appropriate bargaining units select labor organizations to be their exclusive bargaining agents under the National Labor Relations Act (NLRA), those unions have the right to negotiate on the workers' behalf with respect to wages, hours, and working conditions. When union officials need confidential employer information to help them negotiate new agreements or to administer existing contracts, they may generally obtain access to that information. What if the employer declines to Page 1059 provide them with the requested information because it would divulge corporate secrets or would contravene the privacy rights of employees or third parties such as customers who have complained about poor employee service?

Privacy-related concerns arise regularly in employment settings. Employers assert private property rights to restrict the organizing activities of both employees and non-employee union organizers. They also assert privacy claims when representative labor organizations request access to confidential company financial records or similarly privileged information. On the other hand, employers frequently discount employee privacy claims when they monitor worker activities through closed-circuit television cameras and access to employee e-mail exchanges and Internet activities. Firms similarly ignore worker privacy interests when they conduct expansive pre-employment medical examinations and administer tests that purport to measure applicant honesty and other personality traits.

This article explores these interesting privacy issues in twenty- first century employment settings. Part I considers employer reliance upon privacy interests to restrict employee and union organizing activities. To what extent may companies limit these rights? Although representative unions possess the statutory right to seek access to confidential firm data or private employee information that is relevant to the negotiation of bargaining agreements and the administration of those contracts, employers often counter union requests with claims of confidentiality. When are firm or employee privacy rights likely to outweigh labor organization bargaining interests?

In Part II, we consider the degree to which employers may disregard worker privacy interests when they wish to obtain information of a confidential nature. How can managers visually or electronically monitor worker job performance or their protected concerted activities? When can companies access employee e-mail exchanges or Internet activities? When may employers require job applicants or current employees to submit to medical examinations, answer personal medical questions, or take polygraph or paper-and-pencil tests that purport to measure individual honesty or personality traits?

I Employer Reliance Upon Its own Privacy Interests

Section 7 of the National Labor Relations Act (NLRA),6 guarantees employees the right to form, join, and assist labor Page 1060 organizations; to engage in concerted activity for mutual aid or protection; and to select exclusive bargaining agents to negotiate on their behalf with respect to wages, hours, and employment conditions.7 Unrepresented workers who contemplate unionization must generally communicate with union organizers and among themselves. Individuals supporting collectivization distribute literature explaining the benefits of unionization, and they solicit employee signatures on authorization cards empowering the named labor organizations to bargain on their behalf. If a majority of workers in appropriate units of employees who share communities of interests execute authorization cards, the designated unions may request voluntary recognition and exclusive bargaining rights from the relevant employers. Employers generally reject such requests, requiring the labor organizations to petition the National Labor Relations Board ("Labor Board") for representation elections.8

A Traditional No-Solicitation and No-Distribution Restrictions

Employees may not spend their work days handing out union literature or soliciting authorization card signatures. Employers have the right to restrict these activities to enable workers to perform their expected job tasks. The Labor Board and the courts have sought to balance the reasonable expectations of employers against the concerted activity rights of individuals expected to fulfill their job duties. Firms may thus prohibit all employee literature distribution and authorization card solicitation during work time, but not during non-work time.9 To avoid litter problems, companies may also limit non-work time literature distribution to non-work areas of their facilities.10

Retail stores are permitted to impose additional restrictions banning all employee solicitation and literature distribution at any time in the selling areas to preclude interference with customers.11

The interest stores have in maintaining beneficial relationships Page 1061 with customers outweighs the right of workers to engage in concerted activity during their non-work time in the areas open to prospective buyers. Different considerations have been relied upon to allow health care institutions to restrict non-work time distribution and solicitation in areas of immediate patient care, including areas in which such individuals receive treatment.12

This privileged extension of the no-solicitation and no-distribution rules is based upon the privacy interests of patients who might be adversely affected by workers organizing activities in patient...

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