Existing Limits on Preemployment Inquiries


Congress has demonstrated that it can act when a national labor issue presents itself in sufficiently pressing terms. Over the last seventy years or so, beginning with the Fair Labor Standards Act in 1938, Congress has passed a variety of laws addressing the hiring and retention of employees. While some of Congress's actions have themselves spurred invasions of employee privacy (most notably Social Security and tax withholding), an opportunity still exists for Congress to establish clear and unequivocal boundaries on the types of inquiries and surveillance that employers can conduct on their employees. The time has unquestionably come for it to do so.

The Fair Labor Standards Act

Ironically, given the issues being raised by video cameras in the workplace, it was a camera that helped spur the first major piece of federal labor legislation. The old saw is that a picture is worth 1,000 words, but not all pictures are created equal: Some are essentially mute, and others speak volumes. Few photos were as articulate and loquacious as the ones taken by Lewis Hine, who served as a photographer for the National Child Labor Committee from 1908 to 1912. Over the course of those five years, Hine traveled around the country, using his camera to document the often appalling violations and abuses in child labor. [1]

Despite the public outrage inspired by Hine's provocative work, it took nearly another generation for Congress to catch up with public opinion. Finally, at the height of the Great Depression, Congress passed the Fair Labor Standards Act (FLSA). The FLSA is an enormously complicated piece of legislation—made more so by the fact that it attracts amendments and revision the way a ship attracts barnacles—but its main provisions still stand:

  • A forty-hour work week

  • A federal minimum wage

  • Rules and requirements for overtime

  • Restrictions on child labor

While the FLSA has relatively little to do with employee privacy or workplace surveillance directly, it is nonetheless an important example of the sweeping action that Congress is capable of taking when necessary. It also helps to underscore the importance of the political environment. The FLSA was in part intended to improve employment in a depressed economy by making it more expensive to pay existing employees for overtime than to hire new employees at regular wages. It was a bill partially intended to reduce the unemployment rate at a time when the nation's workforce desperately needed the help.

By contrast, any effort to limit employee surveillance today must deal with the political reality that in the wake of 9/11 leans toward more surveillance, not less. Between the USA Patriot Act and the Homeland Security Act, the federal government is on the verge of having unprecedented surveillance authority, and it is a reasonable bet that they will be looking to employers for help.

One surveillance issue that does arise in conjunction with the FLSA is the challenge of accounting for the time that telecommuting employees spend working. How much time someone works is obviously an important issue under the FLSA, and it doesn't matter whether the work is performed in an office or in the home. Given the potential legal exposure for underpaying its employees, the FLSA gives employers an incentive to require the installation of computer monitoring software on home PCs, with all of its attendant privacy concerns.

The Civil Rights Act of 1964

Given the range of topics that it covers, the Fair Labor Standards Act is probably the single most important piece of federal legislation for American employees. But in terms of sheer social impact, the FLSA pales beside Title VII of the Civil Rights Act of 1964, which strove to eliminate most of the insidious discrimination occurring in the workplace.

Under the provisions of Title VII, any employer with more than fifteen employees may not discriminate on the basis of race, skin color, gender, religious beliefs, or national origin. The legislation covers every aspect of employment: advertisements for employment, the hiring process, promotions or dismissals, pay raises, performance reviews, and benefits. To help enforce the provisions of the law, Title VII also established the Equal Employment Opportunity Commission (EEOC).

An immediate impact of Title VII was to alter or eliminate many of the questions that employers were in the habit of asking prospective employees during job interviews (i.e., "What religion do you practice?" "Do you believe in God?" etc.) Currently, a major employment battleground is the area of personality testing; as we saw in Chapter 2, many so-called "personality" tests are really efforts to ask the types of questions that are forbidden by Title VII.

In terms of employee surveillance, one of the more important amendments to the Civil Rights Act was the 1978 Pregnancy Discrimination Act. Employers are frequently concerned about pregnancy in the workplace because a pregnant woman raises difficult issues regarding exposure to various substances that could potentially harm the fetus and/or the mother. Even a healthy pregnancy is an enormously expensive event that can boost a firm's health insurance costs, and the costs skyrocket if the baby is premature or has health complications. The Pregnancy Discrimination Act was Congress's effort to limit employer practices like undisclosed blood tests to determine pregnancy.

Thanks to a combination of events, a major—albeit unintended— consequence of the Civil Rights Act has been to increase the level of workplace surveillance. In 1986, the United States Supreme Court ruled for the first time in Meritor Savings Bank v. Vinson that sexual harassment is a form of discrimination banned by the Act. [2] That decision put the onus on employers to police their workplace to eliminate discriminatory behavior. That responsibility would be difficult enough, given the enormous numbers of sexually explicit magazines, calendars, t-shirts, greeting cards, etc. that are available today, but the widespread adoption of the personal computer in the mid-1980s (just as the hostile work environment doctrine was being formulated) and the introduction of the World Wide Web a decade later have made it immeasurably more difficult.

The Fair Credit Reporting Act

Over the course of just fifteen years, beginning with the widespread commercial introduction of computers in the mid-1950s, credit reporting developed into a secret, unregulated industry capable of wreaking havoc in people's lives with a single uncorrected error. It was an industry that made no pretense of offering due process—credit reporting firms were not liable for the consequences of their errors and there was no clear mechanism for fixing mistakes.

In 1970, Congress passed the Fair Credit Reporting Act (FCRA), which for the first time began to reign in the worst excesses of the credit reporting bureaus. Under the terms of the FCRA, consumers had a right to know what was in their credit files and to demand that any errors be corrected.

As is often the case, mere passage of FCRA was insufficient to correct all of the problems targeted by the law. In 1977, Administrative Law Judge Theodor von Brand criticized the way that one firm, Equifax, handled data, finding that "Some [of the company's employees] resorted to shortcutting techniques with the result that inaccurate reports were produced." [3] Virtually every other credit reporting bureau has been the subject of similar criticism, although recent changes to the FRCA do offer consumers some slightly greater protection from erroneous information in their credit reports. As of September 30, 1997, the credit bureaus are liable up to $250 for each mistake they make.

Amendments to the FRCA since its initial adoption appear to favor employees. An employer is now required to get your written permission to look at the substance of your credit report. Nor is an employer permitted to bury the consent in the fine print of a job application or employment contract: Under the FCRA, you must give separate and unequivocal consent before your employer (or a detective hired by your employee) can view your complete credit information. Of course, as one employment lawyer has pointed out, "If you refuse to give approval to the employer's wandering eyes, you will leave the impression that you have something to hide—and that will likely kill your chances for getting or keeping the job." [4]

In the category of cold comfort, if a prospective employer does reject your job application based in part on the contents of your credit report, the company must inform you of the name and address of the credit bureau from which it obtained the report.

The Employee Polygraph Protection Act

Congress has also passed at least one law specifically designed to protect employee privacy: the 1988 Employee Polygraph Protection Act (EPPA). The law applies to every company in the United States that conducts interstate commerce, which means every company that does business with or communicates with someone in another state via telephone or U.S. mail.

Under the terms of the EPPA, a company is not permitted:

  • To require, request, suggest, or cause any employee or job applicant to submit to a lie detector test

  • To use, accept, refer to, or inquire about the results of any lie detector test conducted on an employee or job applicant

  • To dismiss, discipline, discriminate against, or even threaten to take action against any employee or job applicant who refuses to take a lie detector test

Employers are permitted to use a polygraph test to evaluate employees being hired for jobs in security or drug handling. They may also use a polygraph test to assist in the investigation of a specific theft or crime. But your boss can't just stroll into your cubicle and begin strapping the wires onto you. The EPPA requires that you be given written notice that you are a suspect at least forty-eight hours beforehand (which gives you just enough time to rent Meet the Parents for polygraph test-taking tips).

If your employer does require you to take a polygraph test, the EPPA also imposes some limitations on how the test can be administered. Before the test begins, your employer is required to read to you a statement of relevant information, and must ask you to sign the statement. The statement must include the following information:

  • The list of topics about which your employer cannot ask, including questions regarding your religious beliefs, your sexual preference, racial issues, your involvement in the lawful activities of a labor organization, and your political affiliations

  • Notice of your right to refuse to take the polygraph test

  • Notice that you cannot be required to take a polygraph test as a condition of employment

  • An explanation of how the employer will use the test results

  • An explanation of your legal rights if the polygraph test is not given in the manner required by the EPPA

The Americans with Disabilities Act

Another form of workplace discrimination was banned by Congress in 1990, when it passed the Americans with Disabilities Act (ADA). The law, widely criticized for the breadth and ambiguity of its language, is intended to prohibit employers from taking certain actions, including:

  • Discriminating on the basis of physical or mental disability

  • Quizzing job applicants about their past or current medical conditions

  • Requiring job applicants to take a medical exam prior to being offered a job

  • Creating or maintaining a workplace that interferes with the movement of people with a physical handicap

On first impression, the ADA appears to be a strong tool for employees: It does regulate, to a certain degree, the use of medical examinations during the application process. However, while employers can't ask general questions about your health or medical history during a job interview, there is no restriction on the ability of an employer to ask you medically-related questions that pertain to your job. For instance, if you're applying for a driving job, your prospective employer is entitled to inquire about your vision. If you're applying for a job stocking shelves, the interviewer can ask whether you are strong enough to lift and move boxes for six or eight hours a day.

Not unlike workers' compensation laws, the ADA provides nominal protection and benefits to workers, but at the same time it encourages employers to hire private detectives and conduct secret surveillance of employees not only in the workplace but off-duty as well. The law applies to someone who "has a physical or mental impairment that substantially limits a major life activity; has a record of impairment; or is regarded as having an impairment." [5]

Many employers see a claim of limitation of a "major life activity" as grounds for conducting a thorough investigation of the employee. Such an investigation would be straightforward enough in cases where someone has lost a limb, but it can be much trickier, for instance, when dealing with mental disability claims. It can be difficult to assess whether the benefits available under the ADA outweigh the loss of privacy required to exercise them.

[1]Jacob Riis, a somewhat older contemporary of Hine, helped spur similar changes in housing conditions in New York with his gripping photographs of tenement houses in the book How the Other Half Lives (1890).

[2]477 U.S. 57 (1986).

[3]Will Rodger, "Databases Online: What Is Already Known," Inter@ctive Week (December 1, 1997).

[4]Barbara Kate Repa, Esq., Your Rights in the Workplace, 5th ed. (Berkeley, CA: Nolo Press, 2000).

[5]Barbara Kate Repa, Esq., Your Rights in the Workplace, 5th ed. (Berkeley, CA: Nolo Press, 2000)., p. 8/39.




The Naked Employee. How Technology Is Compromising Workplace Privacy
Naked Employee, The: How Technology Is Compromising Workplace Privacy
ISBN: 0814471498
EAN: 2147483647
Year: 2003
Pages: 93

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