Privacy and Publicity Archives

“I’m retiring; can I ask my boss to keep that confidential?”

Published on July 16th, 2013 by Alan L Sklover

Question: Can I request confidentiality from my boss as I just want to leave on a certain date and not return. I don’t like parties or to discuss my retirement. I have worked here for 35 years and am a private person. Also, would my company have to pay me for unused vacation days?      

Lancaster, Ohio 

Answer: Dear Dennis: While the law does not give you a right to confidentiality about retirement plans, yes, you can request confidentiality about your retirement. Here are just a few thoughts that might be helpful:    

1. Employers are required by law to hold certain employee information in confidence, but only on a very few topics. There are both federal and state laws that require certain information about employees be held in confidence. While state laws vary from state to state, most states do not require employers to hold employee-related information in confidence, with just a few exceptions. I have never heard of any right to confidentiality about retirement plans, and my legal research for this answer has not found any, either.   

2. Required confidentiality about employee information by federal law is mostly limited to medical information. The federal law entitled “Health Insurance Portability and Accountability Act” (called “HIPAA” for short) requires that employer-sponsored health care plans to maintain employee medical information confidential.  

Another federal law, the Genetic Information Non-Disclosure Act (called “GINA” for short) prohibits employers with 15 or more employees from requesting, requiring or purchasing genetic information about employees or prospective employees. 

The federal Fair Credit Reporting Act contains stringent limits on how widely employers can share credit-related information they acquire in employee background checks. 

3. Some states are passing laws giving employees a limited degree of privacy as to their social networking information. In 2012, Maryland became the first state to prohibit employers from demanding employees’ passwords to Facebook and other social networking websites from job applicants and employees. The legislatures of Illinois, Ohio, Delaware, Michigan, New York, California and Washington state are considering similar measures.  

4. It is possible that your employer has its own policy – and maybe even a procedure – about confidentiality of other employee information; that is the place to start. Employers institute their own policies as guidelines for company behavior. Company policies are sort of the “rules of the workplace” by which employees, supervisors and managers must conduct themselves at work. Some companies have both (a) policies about confidentiality of employee information, and (b) procedures to request confidentiality or report breaches of confidentiality. 

Your concern is entirely reasonable, but you sure don’t want to break any rules when you make your request, or miss any deadlines. You should first find out from your employer’s Human Resources Department if any employee-information policies are in effect, and if there are any procedures by which you can, should or must make your request.   

5. Your idea of requesting confidentiality directly to your boss about your upcoming retirement is entirely reasonable and understandable, but may not be entirely practical in light of your employer’s need to transition duties, shifts, and the like. I very much like your idea of requesting confidentiality about your upcoming retirement. Respectful requests for reasonable things at work are a consistent theme of this blogsite. After 35 years, you sure do deserve to be granted such a reasonable request. 

That said, I think you should anticipate hearing things like this: “Dennis, we have to make arrangements regarding transitioning your duties, reassigning your desk, covering your shifts, and even filling out your retirement paperwork, so I don’t think confidentiality about why it is you are leaving is possible. In fact, it might lead to people speculating about your health, your performance or even your conduct.” 

I believe you should, yourself, be prepared with entirely reasonable responses, like: “I understand that, and anticipated that, but surely you can (a) do your very best to (b) tell only those who really must know, (c) tell those people who must know as late as is reasonably possible, (d) request that each person keep the news of my retirement as confidentially as possible, and (e) let us together make a plan and find ways for me to help you do just that.” 

In “navigating” your way in, around and through situations in the workplace, it is always wise to pretend you are the “other person,” and anticipate his or her perspective, concerns and interests.

With this in mind, you are then much more capable – and can be prepared – to work “around” those issues that can be worked around, all to better navigate to the goal you seek. 

6. As to your question about accrued but unused vacation, the answer is “It depends.” Dennis, I am not admitted as an attorney in Ohio, but to answer your question I have done some internet research on the law in Ohio on this point. It seems that Ohio law takes a two-step approach: First, if your employer does not have a clear, written policy that says, in effect, “Employees forfeit their accrued but unused vacation days,” then you are entitled to have them paid to you when you leave. But if your employer does have a clear, written policy that says they are forfeited, and under what circumstances, commonly to be found in policy manual, employee handbook, or hiring letter, then you do not get paid for them when you leave. 

For this you clearly have to consult with Human  Resources. 

I hope this has been helpful to you, and that you are successful in getting the confidentiality and accrued but unused vacation days. Congratulations to you, and enjoy your retirement!!   

My Best,
Al Sklover 

P.S.: Don’t forget: we offer Model Letters, Memos, Checklists and Form Agreements for almost every workplace issue, concern and problem that requires your smart navigating and negotiating. They show you “What to Say, How to Say It.™” Want to see our Entire List? Just [click here.] Delivered by Email – Instantly! 

Repairing the World –
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© 2013 Alan L. Sklover, All Rights Reserved.

“Do employees have a right of free speech?”

Published on February 15th, 2013 by Alan L Sklover

Question: I am a public servant, a teacher on Long Island, New York. 

Does my principal have the right to tell me not to talk to a particular student or employee? The particular principal actually sent the student to me and when she talked to me, he then told me that I had gone against his order, and I was sent home from my duties as teacher. 

Doesn’t this go against my First Amendment rights of free speech?

Long Island, New York

Answer: Dear Doug: You present an interesting question, and one that many people wonder about. Here is the correct analysis:       

1. Public employees – like yourself – have “free speech” rights at work; employees of “private employers” do not. This is because the First Amendment to the U.S. Constitution says that “Congress shall pass no law abridging the right of free speech.” This has been interpreted by the Courts as saying that governmental entities – like your school board – cannot limit free speech of their employees. Since “private employers” do not “pass any laws,” the Constitutional right of free speech does not apply to their regulation of their employees’ speech at work. 

2. However, as with all of our legal rights, the right to free speech has its limits. Whenever we have rights, we have reasonable limitations on those rights, as well. You have a right to marry, but not a right to marry ten people. You have a right to drink alcohol, but you cannot do so while you are piloting an airplane. You have a right to vote, but not in a state where you do not live. As you have probably heard, you have a right to free speech, but you cannot shout “FIRE!!!” in a crowded movie theater, as that would likely cause a potentially deadly stampede toward the theater doors.   

The lesson is this: freedom is precious, but it can also be abused. Thus, reasonable limits are deemed acceptable.  

3. Our Courts have held that the Constitutional right to free speech of public employees applies to valid “issues of public concern,” but not to issues arising out of daily duties. In a well-known case called “Pickering vs. Board of Education,” public school teacher Pickering was fired for writing a letter to a local newspaper critical of the local school board. The Court ordered the school board to reinstate Pickering as a teacher because Pickering had raised a legitimate matter of public concern, and  his statements were neither recklessly false nor ones that would tend to interfere with his performance of his job. 

On the other hand, in another well-known case called “Mt. Healthy vs. Doyle,” a teacher, Mr. Doyle, lost his job after he engaged in a hand gesture commonly called “giving someone the finger” to two students. The Court upheld this firing, even though “giving the finger” has been accepted by many other Courts as a kind of permissible “speech” in other contexts.   

4. So, it seems your “free speech” rights were not violated if it was the Principal’s reasonable judgment that his order was appropriate to maintaining an orderly school, or in the student’s interests. From what you wrote, it seems that the Principal had some reason for his direction to you not to speak with a particular student, even if you may believe he was wrong or he made a mistake. While you may disagree with how the matter was handled, and what was done, it seems that the Principal’s directive, and his sending you home for not complying with it, would be upheld. No violation of First Amendment rights here.  

Douglas, I hope this clarifies things for you on this subject, and helps you guide yourself accordingly in the future. Thanks for writing in. 

My Best to You,
Al Sklover

P.S.: We offer a Model Memo Objecting to Retaliation at Work. If interested, just [click here.] Delivered by Email – Instantly! 

P.P.S.: If you would like to speak with me directly about this or other workplace-related subjects, I am available for 30-minute, 60-minute, or 120-minute telephone consultations. (Even 5-minute “Just One Question” calls). Just [click here.] Evenings and weekends can be accommodated.

Repairing the World –
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© 2013 Alan L. Sklover, All Rights Reserved.

“Does an employee have a right to privacy about performance reviews and performance improvement plans?”

Published on April 3rd, 2012 by Alan L Sklover

Question: Hi, Alan. A co-worker of mine named Mary is on a Performance Improvement Plan. Her former manager, Lisa, has left the company, but is sharing the fact of Mary’s Performance Improvement Plan with other people, both inside and outside the company.

Mary feels that what Lisa is doing is an invasion of her privacy, and a violation of the company’s confidentiality policy. Mary has asked HR to intervene, but they have not done so.

Can Mary go to Court to try to get Lisa not to pass around the information about her PIP? If the company continues to ignore Mary’s requests, can Mary sue the company?   

Bill H.
San Jose, California

Answer: Dear Bill: I’m afraid that there is no “legal” way Mary can assert a violation of her right to privacy. Here are my thoughts.  

1. Employees do have certain “privacy rights” under the law, but they are limited primarily to medical information and unauthorized use of name, photo and voice. When it comes to employees’ rights to “privacy,” federal and state laws do provide some protection, but not much. Surely medical information about an employee must be kept strictly private under the federal “HIPAA” law (short for Health Insurance Portability and Accountability Act of 1996). Also, many states – and California in particular – prohibit the unauthorized use of an employee’s name, photo, and sometimes even voice. And, too, no employer may put a camera in a bathroom stall, to videotape people in the toilet; that would be a criminal offense. Note that these laws protect intimate information about the employee as an individual, but they do not protect information about the employee’s relation with his or her employer, which is generally seen as the company’s information, which it can protect – or not protect – at its own discretion.      

2. Employees also have a right of privacy to engage in most “out-of-office” conduct, but “in-office” matters are not included in that “right.” More and more states are passing laws that give employees a general right of privacy to engage in any lawful activity so long as they are off of the employer’s premises. California has a specific law, California Labor Code Section 96(k) that says just that. So, for example, no employer can tell an employee what church, synagogue, mosque or other religious center he or she can attend during his or her own time. However, some legal conduct practiced on an employee’s personal time outside of the employer’s premises can be prohibited by an employer, such as working for a competitor, because that might bring about sharing of company secrets. And, of course, no airline pilot can smoke marijuana on the weekend, even if it is not illegal where he or she lives, because marijuana consumption may impair his or her performance the next day, and for a number of days, and thereby endanger the lives of airline passengers, among others. Note that these laws focus on “off-work-premises” conduct, and do not prohibit an employer from managing its own “on-premises” affairs as it sees fit.

3. Employers have rights, too, and one is the right to conduct their business affairs with confidentiality or without confidentiality, as they see fit. There is no question that most employers have policies that require confidentiality about their business affairs. However, employers are free to have whatever policies they wish, and to enforce – or not enforce – their own policies, so long as they do not do so on the basis of race, religion, gender, age, disability, national origin, sexual preference, and certain other classifications of people, which would constitute unlawful discrimination.   

4. Whether or not an employee is on a Performance Improvement Plan would not seem to me (a) highly personal, (b) out-of-office personal conduct, or (c) illegal discrimination, and thus not legally “protected” information. Though I am a dedicated employee advocate, I don’t see the fact of being placed on a Performance Improvement Plan to be in one of the three “prohibited categories,” that is, either (a) intimately personal, (b) lawful activity outside of the workplace, or (c) directed at one certain “classification” of people, and so, I do not think it is capable of protection using the law.  

5. It’s an unfortunate fact, sometimes not fully appreciated, that sometimes we must either accept the ways of others, or find others – including employers – with whom to associate. It may seem a bit uncaring and heartless, but this may be one of those “wrongs” for which there is no legal “right.” There are many, many things that people do to one another, and that includes both employers and employees – and in this case it is a former employee – that are mean, hurtful, irresponsible, and even cruel, but the law does not offer protection against all of them. Instead, it is up to the individual to either put up with it, or to find another person or company to affiliate with. Though there are so many more employees in the world than there are jobs – some estimate the “job shortage” to be in the billions – the best an employee may be able to do in one of these circumstances is to seek a new employer elsewhere.

6. I would suggest that senior-most management, or even the company’s Board of Directors, may be of greater assistance than Human Resources has been. Many people incorrectly view Human Resources to be their “protector,” or the “giver of fairness,” but that is not their job, and that is not their function. Simply put, “Human Resources manages Human Resources for management.” For this reason, many people give up if an HR representative does not help them. That is self-defeating, because there are other avenues available, including “going to the top” in a respectful email, describing the situation, and asking for good-faith response. I really mean it when I say that this approach is very much overlooked and underutilized; many of my clients get what they seek in this way. I highly recommend it to your friend, Mary.   

Thanks for writing in, Bill. Though it may not be the answer Mary was hoping for, it is always better to know the truth.

Al Sklover

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© 2012 Alan L. Sklover, All Rights Reserved.

“Can I stop my former employer from using my voice on its answering service?”

Published on November 2nd, 2011 by Alan L Sklover

Question: I was let go from my previous job in February, 2010. When I was let go, I informed the General Manager and the Human Resources Manager that I wanted my voice taken off the main answering machine, and his office answering machine.

The General Manager snickered, and I said, “If you want to pay me to use my voice, that’s fine.” He said, “No.” I gave him one week to remove it. As of this date, my voice is still there.

What can I do? What rights do I have, if any? Thank you.

Manteca, California

Answer: Dear C.M.: Here’s the story:      

1. First, California has a law prohibiting the use of a person’s voice without their prior consent. Probably because so many celebrities make their home in California, it has a strict law prohibiting the use of a person’s (a) name, (b) voice, (c) signature, (d) photograph, and (e) likeness. It is California Civil Code Section 3344(a). A few other states, including New York and Massachusetts, also have similar laws. California’s law imposes a penalty of the greater of (i) $750 or (ii) an aggrieved persons actual damages, on the wrongdoer.  

2. That said, it is my expectation that you did, in fact, give your prior consent when you were still an employee of the company. From what you have written, and from my own experience, it is my expectation that, when you placed your voice on the answering machines, you did, in fact, give your former employer “prior consent” to its use. I mean, surely when you recorded the message, you must have known it was going to be used. Can a person then, later, withdraw that consent, once it is given? The law does not say, but the use of the words “prior consent” in the law suggests that, once given, consent cannot be withdrawn in order to make any further use capable of characterization as “without prior consent.” The law, though, is not “black and white” on that issue.

3. However, I do suggest you make a formal, written request to your former General Manager, and cite this law, demanding they “Cease and Desist.” I strongly recommend that you send a stern letter to your former employer, citing this California law, formally demanding the use of your voice “cease and desist,” which means be discontinued. If you can get an attorney-friend to write such a letter for you, all the better. Just the thought of having to hire an attorney to defend against such a lawsuit, if brought, even in a Small Claims court, may well convince your former General Manager to cease his snickering, and just do what is right. In fact, sending the letter to the CEO or Board Chairman might just embarrass your former General Manager into acting more grown up than he has to date on this subject.

We do offer a Model Letter entitled “Cease and Desist Use of Name and Photo” that could easily be adapted to your circumstances. If interested, simply [click here].

C.M., I hope this is helpful. At a very minimum, there is personal satisfaction in standing up for yourself to a former employer who “snickers” when asked to engage in a simple task that would be nothing more than doing the “right thing.” I encourage you to do it.

Thanks for writing in; please help us by telling others of our blogsite, our Sklover On-Demand-Videos, and our helpful Model Letters, Memos, Checklists and Agreements.

Al Sklover

 Repairing the World,
One Empowered and Productive Employee at a Time ™ 

© 2011 Alan L. Sklover, All Rights Reserved.

“Can employers require medical information from job applicants?”

Published on August 10th, 2011 by Alan L Sklover

Question: I work as an Employment Specialist in Ohio coaching a wide range of job seekers on their job search strategies. More and more people are asking me about being asked by prospective employers to provide them with a release to obtain medical histories and files on the actual job application.

Is this legal? If so, how do these applicants protect their medical information?    

Cleveland Heights, Ohio

Answer: Great question, Dave, but one that is not easy to answer. Here’s my best:   

1. With very few exceptions, employers can legally require employees to disclose prior medical histories and other medical information. Employers’ efforts to obtain more and more information about job applicants has given rise to more and more questions being asked in interviews about medical histories. To the surprise of many people – perhaps most people – as a general rule it is not illegal to refuse to hire someone, or even to terminate someone, based on a medical condition. “Isn’t that illegal discrimination?” you might say.

The general answer is “No.” While it is discrimination of a sort, it is not generally illegal. It is illegal to discriminate in employment matters against a person who has a disability, but it is not illegal to refuse to hire someone with, for example, tuberculosis, especially to work in a daycare center.  

2. In fact, for some jobs, an applicants’ medical history may be very relevant. For example, should an airline hire a pilot if she has a history of fainting? Should a restaurant hire a chef with hepatitis? Should a color-blind bus driver be hired if he can’t tell the difference between a red light and a green light? (By the way, that bus driver example was an actual court case last year in Brooklyn, New York.)

3. A few states do have helpful statutes which limit health-related questions at interviews. For example, Maryland has a law that prohibits requiring a job applicant to provide information regarding a medical condition. (Maryland Ann. Code, Labor & Employment, Section 3-701). However, even this law permits such questions if the condition has a “direct, material, and timely relationship to the capacity or fitness of the applicant to perform the job properly.” (I suggest a quick Google search to find out if your own state is one of those few with such a law.)

4. One federal law, the Genetic Information Nondiscrimination Act (or “GINA”) does forbid employment discrimination based on “genetic information.” This federal law became effective in November, 2009, and forbids the use of “genetic information” in any employment decision (if the employer employs 15 or more employees.) “Genetic information” includes information about a person’s genetic tests, as well as information about “family history” of certain illnesses. With six narrow exceptions, employers are forbidden to even ask questions on these topics.

5. Federal and state laws do protect most employee medical history from dissemination. On the federal level in the U.S., several laws do require employer care with employee medical information: (a) the Americans with Disabilities Act (“ADA”) prohibits employers from disseminating medical information obtained in the process of addressing concerns of the disabled; (b) the Family and Medical Leave Act (“FMLA”) does the same for medical information obtained during certification for approved medical leaves of absence; and (c) the Health Insurance Portability and Accountability Act (“HIPAA”) does the same regarding information obtained from health insurance plans and insurance policies. None, however, addresses interview or application questions about medical histories.

Bottom line, Dave, is that most employees are vulnerable to employers prying into their medical histories, and even making decisions on hiring, advancement and firing on this basis, while genetic information (defined to include family medical history is off limits during the employment application and interview process). That said, there is increasing protection of employee medical information obtained in the course of employment-related activities such as applying for disability, applying for medical leave, or related to health care coverage.

Thanks for writing in. We hope you mention our blogsite to those you counsel on employment strategy. Feel free to write again with any other questions you, or your clients, may have.

Al Sklover

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© 2011 Alan L. Sklover, All Rights Reserved.

Alan L. Sklover

Alan L. Sklover

Employment Attorney
and Career Strategist
for over 35 years

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