Walking the line between violence prevention and employee privacy - Predicting the Next Legal Age - Brief Article

In recent years, workplace violence has become an increasingly significant concern for employers. This is due to two factors: the frequency of violent episodes in the workplace (and outside as well) and the emergence and expansion of theories of employer liability.

The statistics regarding violence in the workplace are staggering. Homicide is the leading cause of death for women in the workplace and the second leading cause of death for men, according to a 1997 report from the National Institute for Occupational Safety and Health. Further, workplace assaults result in about 1.7 million lost work days and $55 million in lost wages each year, according to a study by the Bureau of Justice Statistics at the U.S. Department of Justice.

At the same time, the potential for employer liability has increased substantially. Previously, employer liability was limited to acts that occurred within the course and scope of employment. However, modern theories such as negligent hiring and retention impose liability on employers even for actions that occur outside the ordinary course of employment - if the employer knew, or should have known, that the employee had the propensity to cause such harm. Virtually all jurisdictions in the country now recognize these theories.

Additionally, employers can be subjected to liability for employing dangerous employees under the Occupational Safety and Health Act's General Duty Clause, which requires that employers furnish employees with a working environment that is free from recognized hazards.

Typically, plaintiffs succeed in obtaining damages for negligent hiring or retention by showing that data were available that revealed an employee's unfitness or propensity to cause harm and that the employer failed to take reasonable steps to uncover this information.

For example, employers have been subjected to large damage awards because they failed to discover, either during the hiring process or through subsequent monitoring, that their applicants or employees had histories of violent criminal acts, crimes involving sexual misconduct, reckless driving, driving while intoxicated and uncontrolled mental illness.

It has also become commonplace for employees to use these legal theories to seek remedies against employers that hire or retain applicants or employees who were previously accused of sexual harassment in the workplace.

The promulgation of these liability theories provides a strong incentive for employers to discover as much job-relevant information regarding their applicants and employees as possible. However, when seeking such information, employers must ensure that they do not infringe on employees' privacy rights or overstep laws that limit access to and use of such information.

This may be an increasingly difficult task because the sources of employee privacy rights continue to grow. And, increasingly employees are asserting common law causes of action for invasion of privacy, typically based on unauthorized disclosures of private facts or unreasonable intrusions upon solitude and seclusion.

Additionally, many federal and state statutes limit the ways in which employers can obtain information regarding applicants and employees, as well as the type of information that can be sought.

For example, the Electronic Communications Privacy Act of 1986 regulates the interception, disclosure and use of wire, oral and electronic communication, and thereby affects the ability of employers to monitor employee telephone conversations and e-mail. Another federal statute, the Fair Credit Reporting Act, was recently amended to place greater restrictions on the ability of employers to obtain investigative consumer reports relating to the character of applicants and employees.

In addition, state statutes are often more expansive than their federal counterparts and provide limited access to criminal records, which prohibits disclosure of personnel records by previous employers, as well as statutory rights to privacy.

As the law develops on these two fronts, the task of maintaining a safe workplace while respecting employee privacy rights will become increasingly difficult. Careful planning, supervisor training and policy implementation are crucial if employers are going to successfully reconcile these often conflicting goals.

Ronald M. Green is chair of the Labor and Employment Practice at Epstein Becker & Green, P.C., a firm with 11 U.S. offices.

COPYRIGHT 1999 Society for Human Resource Management
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