Category: Right To Privacy

Canon Inc. Settles Unlawful Background Check Lawsuit

In 2012, Canon date entry worker, Anya McPherson, was terminated from the company after information from a background check reached the company. She had been on the jobs for 4 days when the company cited a felony from over a decade prior as the reason for her termination.

Shortly after her termination, McPherson and her attorneys filed a class action lawsuit in New Jersey against the technology mogul for conducting illegal background checks on current and prospective employees. McPherson, specifically, had no opportunity to explain that her 12 year old felony charge was up for expungement. Additionally, she was not given a copy of the background check, which may violate the Fair Credit Reporting Act.

Without admitting liability, Canon offered McPherson an unreported settlement 2 years later. Especially now with “ban the box” legislation well under way in many states, background checks are a hot topic.

As a prospective or current employee, make sure the employer is no longer using the “box”—i.e. the check box on employment applications (“Have you ever been convicted of a crime?). Also, the company and/or employer must get an executed legal release form and inform an applicant of their rights, including obtaining a copy of the report and any communication from the check that resulted in an adverse action against the applicant.


Your Private Information Is Just That: Private

Sometimes, your boss knows things about you that you don’t want your coworkers to know.  Maybe you have a disability, or are going through marital troubles, or are being treated for bipolar disorder.

There are often good reasons you have to tell your supervisor things like this.  Maybe you explained why you had to miss work one day, or why you were so upset at work.  Just because you tell your boss, however, doesn’t mean it’s okay for him or her to tell everyone else.

California has a law that makes it illegal to publicly disclose private facts in certain situations.  For Melissa Ignat, the law became a reality when she missed work because of her bipolar disorder, and her boss shockingly decided to tell all of her coworkers about it while she was out.  Ms. Ignat had not told her coworkers about her bipolar disorder and was very upset that her supervisor had done so.

Worse, her coworkers started avoiding her and treating her differently.  One even asked the boss if Ms. Ignat was going to “go postal” and harm them because of her disorder.

It is not just poor managing or gossip for a supervisor to share your private information – it can even be against the law.  Employees are supposed to be able to feel comfortable talking to their bosses when there is something going on in their lives that may affect their work.  Bosses like Ms. Ignat’s, however, are one of many reasons employees often feel uncomfortable talking to their supervisors about important topics.

We will have to wait until her trial against the company next year to find out whether a jury agrees that Ms. Ignat’s boss broke the law, but if you have been the victim of a supervisor’s public disclosure of your private information, you don’t have to wait that long.  Contact an Aegis attorney if Ms. Ignat’s situation sounds familiar to you.

Just Say “No” to Random Drug Testing

Despite what many employers seem to think, drug testing employees is not the free for all they would like it to be.  Employers are quite limited in when they can request drug tests for employees.

When You Have Been Offered A Job

An employer may require suspicionless drug testing as a condition when they offer you a job before you start work – if they require drug tests for every new employee coming into the same position.  Generally, and employer cannot single a job applicant out for drug testing when others in the same position are not, as it implies the drug test is being done for an unlawful reason, such as because of the applicant’s race or disability.

Current Employees

However, once you start working, an employer’s right to ask you to take a drug test is very limited.  Random testing or routine testing are generally not allowed, except in very limited circumstances like in DOT/truck-driving industries where it is required by law and certain safety-sensitive positions.

An employer is allowed to require an employee to take a drug test based on reasonable and objective suspicion.  An example would be an employee who comes in smelling of marijuana, slurring his speech, and with bloodshot eyes.  Any reasonable person would suspect that employee was probably high, and an employer is allowed the same suspicion.

After An Accident

Just the fact that an accident occurred is not enough to imply drugs or alcohol were involved and a company is therefore not allowed to require drug tests after a run of the mill accident.

On the other hand, if there are objective, observable clues for believing they were – say the employee was swerving along the road like a drunk driver and reeked of alcohol after the accident, or was caught with drugs on them – the employer may require a drug test based on a reasonable suspicion.

Employees With Disabilities

Some employees are required to take medications for disabling conditions that might show up on drug tests.  What happens then?  Employers absolutely are not allowed to require an employee to submit to a drug test simply because he or she is disabled.  If the medication use does not interfere with the performance of the employee’s job, the law protects the employee.  However, while an employer cannot fire disabled employees for using a legal drug that does not interfere with their job, even disabled employees may be drug tested and even terminated if their medication use creates safety risks to themselves or others.

A Special Note About Marijuana

Despite California’s laws permitting medical marijuana use, marijuana use is not protected in the workplace.  Even with a prescription, an employee may be fired for marijuana use on the job or coming to work high.

Image Source: Common Constitutionalist Blog

Purloined Potty Privacy

bathroomThis falls under the heading of “be glad you don’t work here”:  In Chicago, Illinois, a company has started monitoring the time employees spend in the bathroom and disciplining employees it thinks use the restroom too much.

The company requires employees to swipe a card on a card reader when they enter and exit the bathroom, and keeps track of how much time each employee spends in the toilet.  If an employee spends more than 60 minutes in the bathroom in ten working days – or about 6 minutes per day – the employee can be given a disciplinary warning for “excessive use of the bathroom.”  On the other hand, an employee who does not use the restroom at all during a workday can earn a dollar on a gift card, for up to $20 per month.

In California, there would be several problems with a potty policy like this.  California goes a lot further than many states to protect employee privacy.  Keeping a list monitoring all line employees’ bathroom time seems to be a fairly major invasion of the employees’ privacy, and while there are no laws directly addressing this situation, there is a good chance the courts would agree the employer’s policy goes much too far.

Even worse, the potty policy could require employees to give their employers private, medical information.  There are numerous medical and disability-related reasons an employee might not be able to comply with the 6-minute limit or might need more than one or two bathroom breaks in a day, from Crohn’s Disease to medication-related incontinence issues, to nausea from pregnancy or even cancer-related chemotherapy.  Not only would the potty policy discriminate against these people, which would be unlawful, but it also might require them to explain their medical conditions simply to keep their jobs.  Normally, employers are very limited in what kinds of medical information they can ask, but a policy like the one the Chicago company has would basically require employees to volunteer the information.  A California company almost certainly would not be able to get away with such taboo toilet tracking.

Genetic Information Cannot be Grounds for Discrimination

When you usually read about employment discrimination, the suit alleges discrimination based on race, gender, pregnancy, religion, age, and sexual orientation. The lesser talked about, lesser known protected category is not observable to the naked eye. Why you ask? Because it’s genetic. That’s right; your genetic information is protected by both federal and state law.

According the California’s Department of Fair Employment and Housing, a “genetic characteristic” is defined as “any scientifically or medically identifiable gene or chromosome or combination or alteration of a gene or chromosome, or any inherited characteristic…” A potential or current employer cannot discriminate against you based on your genetic susceptibility to certain inherited diseases or disorders.

Federally, the Equal Employment Opportunity Commission has been operating under the Genetic Information Non-discrimination Act (“GINA”) that Congress passed in 2008. It also prohibits adverse employment reactions to information regarding a potential employee or employee’s genetic information. At the beginning of the year, the EEOC settled a landmark case regarding genetic information discrimination.

In New York, Founders Pavilion Inc., a nursing and rehabilitation center, recently shut down due to the case. Last May, Founders was sued by the EEOC for requesting “family medical history as part of its post-offer, pre-employment medical exams of applicants.” The EEOC further alleged that five employees were fired after their genetic information was revealed; 138 total employees and potential employees were asked for the information.

Founders was held liable for a $370,000 award for the 138 individuals that were asked for information and the 5 that were terminated as a result.

Though genetic information discrimination is not specifically prevalent in day to day legal activities, if you feel you have been subject to such discrimination, contact Aegis immediately.