Articles Posted in Workplace Privacy

A case decided earlier this month addresses a question that periodically comes up in employment law cases: Will your former employer be able to obtain your personnel file from your current employer if you file an employment discrimination or retaliation lawsuit?

Can My Former Employer See My Current Employment Records As Part of
During an employment lawsuit, the employer and employee engage in a process called discovery. Discovery involves an exchange of information between the parties, including requests for documents, written questions called interrogatories, and oral questions at a deposition. In addition, either side has the right to issue subpoenas requiring non-parties to provide relevant documents and information. The purpose of discovery is to allow each side to gather evidence to support its case and evaluate the other side’s position.

Discovery is supposed to be broad. However, it has limits. For example, it only is supposed to be used to try to learn something relevant about your case, and not to harass or punish the other side. Unfortunately, there often are disagreements about whether a discovery request is being used for a proper purpose. The question of whether your former employer is entitled to obtain copies of records from your current employer is one such issue that can arise during an employment law case.

Late last month, the New Jersey Appellate Division ruled that ExxonMobil Research and Engineering Company may have violated New Jersey Law Against Discrimination (LAD) when it fired an employee suffering from alcoholism after she failed a breathalyzer test. The LAD prohibits employers from discriminating against employees because they are disabled. Since alcoholism is a disability, it is illegal to fire an employee because he is an alcoholic. However, the LAD permits employers to fire employees if their disabilities, such as alcoholism, prevent them from performing their jobs or create a serious health risk.

bigstock-Businessman-At-His-Desk-Workin-8972239.jpgThe case, A.D.P. v. ExxonMobil Research and Engineering Company, involves an employee who voluntarily informed her employer, ExxonMobil Research and Engineering Company, that she was an alcoholic and was checking herself into an inpatient rehabilitation program. Based on company policy, ExxonMobil required her to stop from using any alcohol and to undergo random breathalyzer tests for two years. The company did this even though the employee had an exceptional performance history, and there was no evidence she was ever intoxicated at work or that her drinking interfered with her job in any way. When the employee eventually failed a breathalyzer test, ExxonMobil fired her. She then sued, claiming the company committed disability discrimination, in violation of the LAD.

The Appellate Division found there was direct evidence of disability discrimination. Specifically, a manager admitted ExxonMobil required the random drug testing pursuant to company policy because the employee revealed she is an alcoholic, rather than because of anything relating to her job performance. The Court found this policy to be discriminatory since it shows hostility toward alcoholics. Given this direct evidence of discrimination, the court ruled that ExxonMobil has the burden to prove it would have fired the employee irrespective of her disability. Usually the employee has the burden to prove discrimination.

The Court explained that companies have the right to fire employees whose disabilities prevent them from adequately performing their jobs. However, to establish this defense, a company needs to prove the particular employee could not perform her job. In this case, the court found no evidence that the employee was unable to perform her job despite her alcoholism.

The Court also explained that companies can fire employees whose disabilities create a serious health risk. But to establish this defense the company needs to prove, with a reasonable degree of certainty, there is a probability the employee’s disability will cause a substantial injury to the employee or someone else in the workplace. To meet this test the employer has to show more than the fact that the employee has a specific disability. It has to prove the disability was likely to pose a safety risk with respect to the particular employee.

For more information, please see our previous article, When Can A Private Company Require Random Drug Testing in New Jersey?

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I often read status updates on sites like Facebook, LinkedIn and Twitter reflecting my friends’ feeling about their work, bosses, and co-workers. It is worth a reminder that such postings potentially can be used against you in an employment law case, such as a discrimination, harassment, or retaliation lawsuit. If your profile is public, or if one of your supervisors is your “friend,” your employer will have easy access to that information. But your employer might be able to obtain the information in a lawsuit even if it was originally visible only to individuals who you have accepted as “contacts” or “friends.”

For example, one of my clients recently received the following request from a large law firm that represents employers:

Produce a copy of the contents of Plaintiff’s account on any social media websites, such as Facebook, MySpace, Twitter, LinkedIn, etc.

I intend to object to this request because it is nothing more than a fishing expedition, and the employer is seeking information that is not relevant to the case. But there are many ways in which your posts may be relevant to an employment law matter. For example, if you are having a good day at work and post “I love my job,” that could be used against you to prove you did not experience a hostile work environment, and therefore harm your harassment claim. On the other hand, if you express negative feelings about your boss, co-workers, clients, or customers, then you could be accused of disparaging your employer, which could violate an internal company policy, your employment contract, or your duty of loyalty to your employer.

It is important to realize that, unless you delete it, all of the data you have posted on Facebook, including wall posts, photos with comments, videos, private messages, friend lists and other user profile content, remains accessible in an archive that is fairly easy to retrieve. You can download it from the Account Settings menu. Thus, even very old posts could hurt you if the employment relationship goes bad. Be very careful about what information you post about your job on social networking websites. At the very least, you should not post anything about your current or former employer that you would not want the employer to read.

However, once you are considering filing a lawsuit, you cannot erase your archive because you would be destroying potential evidence in your case, and you could be penalized. For example, in Lester v. Allied Concrete, a plaintiff who prevailed in a wrongful death case was ordered to pay a $180,000 fine for deleting his Facebook profile.

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On June 26, 2009, in Stengart v. Loving Care Agency, Inc., New Jersey’s Appellate Division ruled that confidential emails employees send to their lawyers using company computers are protected by the attorney-client privilege.

Under the attorney-client privilege, communications made in confidence between lawyers and their clients in the course of their professional relationship are privileged. The primary reason for the attorney-client privilege is to encourage clients to engage in a full and free disclosure of information with their lawyers.

In Stengart, employee Marina Stengart was still working for Loving Care Agency, Inc., when she emailed an employment lawyer about her potential discrimination case. She sent emails to her attorney, using her private Yahoo email address, from her company-issued laptop.

From the standpoint of employees, random drug testing policies can be invasive, offensive, and a violation of their right to privacy. For example, drug testing can reveal information about an employee’s medical condition or prescribed medication, even when the employer has no legitimate right to that information. In contrast, from the standpoint of a private company, random drug testing can be an effective tool to limit workplace accidents, theft, and poor job performance.

Given those competing interests, when determining whether a private company’s random drug testing policy is an impermissible invasion of privacy, New Jersey law requires a balance between the employee’s privacy interests against the public interest being advanced by the employer. In New Jersey, an employee who is fired for refusing to participate in a private company’s random drug testing program may have a legal claim for wrongful discharge in violation of public policy if the employee was fired for refusing to submit to random drug testing and the employee’s privacy interest outweighs the public interest in favor of the testing.

Determining if the public interest outweighs the right to privacy for a particular random drug testing program is a difficult question. To make that determination, a court has to balance the employee’s right to privacy with employer’s reason for testing. For example, the New Jersey Supreme Court has found that if an employee’s duties are “so fraught with hazard that his or her attempts to perform them while in a state of drug impairment would pose a threat to co-workers, to the workplace, or to the public at large, then the employer must prevail.” Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81 (1992). Some of the factors used to determine the public policy interest in favor of testing include whether there is any evidence of drug use by employees, the potential dangers of the employee’s job, how long the drug testing program has been in place, and whether the employer can effectively detect drugs without testing, such as by having supervisor observe employee behavior.

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