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Computer Privacy Annoyances by Dan Tynan

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MISCELLANEOUS WORK ISSUES

Dish the Dirt, Lose Your Job?

The Annoyance:

My employer “monitors calls for quality assurance” between me and the company’s customers. If I happen to say something nasty and vile about my vile, nasty boss, can he fire me?

The Fix:

It depends on whom you’re talking to. Businesses that monitor phone calls aren’t legally allowed to eavesdrop on private conversations. So if you call your boss names while you’re on the phone with your spouse, technically they’re not allowed to listen. Of course, your supervisor could overhear you saying it at work, or the tattletale in the next cubicle could repeat this information to your boss. That’s all perfectly legal.

According to the NWI’s Lewis Maltby, as long as employers aren’t violating your civil rights, they are free to fire you at any time for whatever reason. “Your boss could fire you for writing a letter to the editor,” Maltby says. “He could fire you because he doesn’t like the way you part your hair or because his wife burnt the toast that morning.”

The exception: a company can’t fire you if doing so would violate a federal or state law. For example, your employer is forbidden to fire you simply because you filed a worker’s compensation claim against it. Your boss also can’t fire you for refusing to do something that’s against the law (like cooking the books or lying to the SEC). And if you have an agreement with your employer that lays out grounds for dismissal, your boss has to follow it, though you might have to go to court to enforce that contract. Your options? Negotiate a work agreement that describes exactly how and when your employer can terminate you, or keep your lips zipped until the boss is truly out of earshot.

Medical Records May Be Hazardous to Your Job

The Annoyance:

My child has a chronic health condition. I’ve used my employer’s health insurance plan to cover part of the costs of his treatment. Now I’m looking to switch jobs. Can my new boss find out about my child’s health history and use that to as an excuse to hire someone else or deny my family insurance coverage?

The Fix:

Legally, your new boss shouldn’t find out, but that doesn’t mean he won’t. The Health Insurance Portability and Accountability Act (HIPPA) prohibits health care providers from sharing identifiable information with your employer without your written consent. So in theory, your new boss need never know about your child’s health history. But naturally there are exceptions. If your employer is paying for your health care costs out of its own pocket, it would have access to your medical records, though it can’t legally share them with other parties or other employees not involved with administering the health plan.

On the other hand, if your employer isn’t providing health care (i.e., a third-party insurer is paying the claims) and it obtains your medical information via other means, HIPPA doesn’t apply. While your boss can’t go to your doctor and demand your medical records without your consent, he can find out in other ways—for example, if you sign up for an employee assistance program to deal with a substance abuse problem. Information you provide on job applications or via work-related physicals, anything that turns up in a background check, health secrets you disclose in ordinary conversation—all are fair game.

“One of the biggest workplace privacy risks is employer access to medical records,” says author Fred Lane. “That one is harder to quantify because it’s not supposed to happen. But with the growth of self insurance by employers and rising medical costs, there’s a tremendous incentive for employers to gain access to that information.”

If your boss violates your rights under HIPPA, you can file a complaint with the U.S. Department of Health and Human Services Office for Civil Rights (http://www.hhs.gov/ocr/hipaa). For more information on your rights under HIPPA and how to file complaints, visit the Health Privacy Project web site (http://www.healthprivacy.org). There you’ll also find summaries and links to various state laws, which may offer more medical privacy on the job, depending on where you live.

Cameras, Cameras, Everywhere

The Annoyance:

I can’t go to the bathroom without passing under the ever watchful eye of a surveillance camera. Company management says the cameras are there for our protection, but I can’t help feeling like I’m being spied on. Is there anything I can do to stop it?

The Fix:

With few exceptions, employers are free to videotape you if you’re in a public or open area, or if you’ve given your consent to be taped. (You may have given consent without knowing it; for example, by accepting an employee handbook that had information about the company’s monitoring policies buried inside it.) If they’re filming you while you’re in your skivvies, though, the law may be on your side.

According to privacy attorney Parry Aftab, “when the video surveillance is hidden, or records areas generally considered ‘private,’ such as rest rooms or dressing rooms, the courts have been divided on whether an invasion of privacy has occurred.” The key is where the court is located and whether it determines you have a “reasonable expectation of privacy.”

For example, in January 2002 the U.S. Supreme Court let stand a decision barring Consolidated Freightways from placing hidden cameras in employee restrooms, despite a collective bargaining agreement with a local Teamsters union that allowed such surveillance. The cameras were found to violate a California state law barring such “toiletcams.” The state of Connecticut also bars video cameras from areas such as employee lounges or locker rooms. If your state has statutes prohibiting invasions of privacy (as California, Connecticut, and Massachusetts do), your odds of prevailing in court are much better. Of course, bringing suit is a last resort. You may have better luck by banding together with similarly aggrieved coworkers and asking your employer to remove cameras placed in sensitive areas. (For more on monitoring, see Aftab’s site at http://www.aftab.com/videotapinglaw.htm.)

The Searchers

The Annoyance:

My employer insists on searching my office, my desk, even my backpack. What gives her the right?

The Fix:

The real question is, what can prevent her from doing this? And the sad answer is, not much. A 1999 survey by the Society for Human Resource Management and The Wall Street Journal’s http://CareerJournal.com site found that nearly half of HR managers thought it perfectly acceptable for an employer to search an employee’s office or desk. (Not surprisingly, only one in five job seekers considered this a reasonable search.)

In this area, public sector employees may be able to lean on Fourth Amendment protections against unlawful search and seizure. With private companies, the law leans the other way. Your employer generally needs a valid reason for the search—such as suspicion of theft. And, as with video and electronic monitoring, the search shouldn’t impinge on reasonable expectations of privacy. If you work in an office where personal searches are rare, and your employer has no reason to suspect you of wrongdoing, your expectation of privacy may be fairly high. If you work in a jewelry store where employee bags are periodically checked, your expectations should be much lower.

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