Privacy in the Employment Relationship

by Thomas H. Wilson (deceased), Vinson & Elkins LLP with Practical Law Labor & Employment

A Practice Note that provides a general overview of the key legal principles governing employee privacy in the private employment context. This Practice Note discusses the complex patchwork of state and federal laws that regulate privacy in the workplace, including common law invasion of privacy claims. It addresses the legal considerations involved in various employment practices such as conducting background checks under the Fair Credit Reporting Act (FCRA), implementing drug and alcohol testing policies, and performing medical examinations in compliance with the Americans with Disabilities Act (ADA). The guidance explores employer rights and legal risks associated with monitoring employee activities, including email and internet usage, video surveillance, and the use of Global Positioning System (GPS) tracking technology. This Practice Note also reviews rules for managing personnel and medical records, state laws protecting employees' lawful off-duty conduct, and the implications of workplace surveillance under the National Labor Relations Act (NLRA).