Privacy: Make Employers Keep Your Secrets 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?      

Dennis
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! 

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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.

Best,
Al Sklover

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© 2012 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?    

Dave
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.

Best,
Al Sklover

Help Yourself With These and Other
Unique JOB SEARCH Materials

Next Step 1: Letter to Friends, Family: Seeking a New Job
Reference 8: Request for Positive References to Former Managers & Colleagues
New Job 1: Cover Letter Submitting Your Resume
New Job 2: "Thank You" Letter after Job Interview
New Job 8: 50 Good Reasons to Explain Your Last Departure
New Job 10: Model Response to Interview Asking Your Salary Expectations
New Job 21: 163-Point Master Guide and Checklist to Interviews

[ Click Here ] and Go to Sections "A, B and C"


 
© 2011 Alan L. Sklover, All Rights Reserved.

“If an agency introduces me to an employer, can I take a different job directly with the employer?”

Published on July 14th, 2011 by Alan L Sklover

Question: I accepted a position through a temp agency and the same employer the temp agency is working for wants to hire me directly for a different position. I have not been given a start date by the temp agency.

Even though I signed papers accepting the position offered to me by the temp agency, can I turn it down, and instead accept the position being offered to me directly by the same employer? I’d prefer the job with the employer, because it also offers benefits.   

Julie V.
Green Bay, Wisconsin

Answer: Dear Julie,     

I’m really glad you submitted this question because, while many clients have asked me this question, this is the first time it was submitted by one of our blog visitors. As you will see, I’m unable to be more specific with some aspects of my answer, because I don’t know some very important facts of what has happened. Though I’m not licensed to practice law in Wisconsin, these are my thoughts:          

1. Almost for sure you can “back out” of your acceptance of the position with the agency. Since you did not start the job working for the agency, the agreement you accepted to do so can be essentially ignored. It is what we call in law an “executory contract,” which means “un-begun” by either side, and therefore capable of being abandoned by either side without effect. 

2. If you did not sign another agreement with the agency that says, in effect, “I won’t work directly for any of the agency’s customers,” then you are free to do so. Your relations with the agency – including any obligations you have to it – are governed by your agreements (if any) with the agency. Often temp agencies have job candidates sign agreements that say, in effect, “I won’t take a job with any employer you introduce me to.” If you signed an agreement like that, you can’t work directly for the employer. If you didn’t sign an agreement like that, you can. If the agency did not get you to sign such an agreement, it is their problem, not yours.

3. It’s also possible the employer signed an agreement with the agency that says, in effect, “We won’t hire any job candidates you introduce to us.” This would be the most common situation. If the employer did sign such an agreement with the agency, it is the employer – not you – who can’t enter into an agreement with you without concern of a lawsuit. Again, if the agency failed to get the employer to sign such an agreement, it is their problem, not the employers.  

4. Most likely, the employer will have to pay a “placement fee” to the agency, and that will be it. This is the most probable outcome of the situation. In fact, this very thing – an agreement between the agency and the employer that the agency is deemed to have earned a “placement fee” if any of its candidates gets hired by the employer – is what I have seen most often. This really does not affect you, but rather the agency and the employer.

5. I suggest you take the job directly with the employer, and see what happens. There’s an old saying, “Don’t ask permission; if necessary, ask forgiveness.” This path forward would seem to me to be the best way to proceed, though it may be a bit anxiety-provoking to you. Just remember: (a) it seems you are valued as an employee, and (b) benefits sure do help.

I hope this is helpful, and I’d love to hear how it all works out.

Thanks for writing in. Please tell others about out blog.  

Best,
Al Sklover

Help Yourself With These and Other
Unique JOB SEARCH Materials

Next Step 1: Letter to Friends, Family: Seeking a New Job
Reference 8: Request for Positive References to Former Managers & Colleagues
New Job 1: Cover Letter Submitting Your Resume
New Job 2: "Thank You" Letter after Job Interview
New Job 8: 50 Good Reasons to Explain Your Last Departure
New Job 10: Model Response to Interview Asking Your Salary Expectations
New Job 21: 163-Point Master Guide and Checklist to Interviews

[ Click Here ] and Go to Sections "A, B and C"


 
© 2011 Alan L. Sklover, All Rights Reserved.

“What can an ex-employer say about an ex-employee?”

Published on July 5th, 2011 by Alan L Sklover

QuestionMy boyfriend was let go from his job. The only thing he was told was that he was being let go, though it should be noted that when he was hired, he was told the work may be temporary.

He is currently going through a divorce, and his wife went to his ex-employer and asked for a letter stating why he was fired. The company – which her step-father works for – provided her with a letter listing numerous reasons why he was “fired.”

My boyfriend was never provided with a copy of that letter. His wife then used this letter in court, and stated in the court that she went and asked for the letter, and was given it.

Is this legal? Can he take action against his ex-employer?  

 Kathy
(City, State Not Provided)

Answer: Dear Kathryn:

What happened to your boyfriend illustrates important issues about the relation between former employees and their former employers:     

1. After the employment relation ends, the former employer and former employee are, for the most part, essentially “strangers.”  With very few exceptions, former employees and former employers have no relation to each other, almost as if strangers, unless they have signed an agreement obligating themselves further. There are very few exceptions to that.

2. Thus, neither the former employee nor the former employer has any legal expectation of privacy, confidentiality or secrecy, unless they have agreed to that. Thus, both the employer and the employee are free to tell other people anything they want regarding the other. That said, again, just like strangers, if one makes a false and damaging statement about the other, the “victim” of the false statement can sue the 0ne who spoke or wrote falsely.   

 3. The law does prohibit defamation, but that requires the utterance of a false statement. Defamation is a very narrow concept. It requires (a) the public dissemination, (b) of a false statement, (c) that is damaging, and (d) is outside of several different exceptions that the law permits. For example, in a courtroom trial, no matter what a witness says – no matter how false, no matter how widely it is publicized, and no matter how damaging, the law says “This is protected, and is outside of what we call defamation.” Another exception are expressions of opinion, because they are not statements of “fact.” There are many other such exceptions. It is very possible that the letter written by your boyfriend’s former employer were true, or were protected opinion, or fit into some other exception.  

4. So the former employer is free to make true statements (oral or written), and so is the former employee. My  concern is that the reasons in the letter that went to Court may have been true. As noted above, both former employees and former employers are free to make true statements, regardless of the effect of those statements.  

5. Incidentally, the fact that your husband’s wife’s step-father works for the company should make the letter’s statement suspect, perhaps even without any credibility. One thing I do hasten to point out: I would expect that your boyfriend’s lawyer in court would remind the Judge that his wife’s father works for the former employer, and thus it makes the letter somewhat suspect. In fact, the letter would seem to some to be without any credibility whatsoever.

So, for these reasons, from what you have written, I think what the  former employer did was “legal,” and I don’t think your boyfriend has any legal recourse against his former employer.  Sorry for the bad news.

Thanks, in any case, for writing in, and I do hope you’ve found this information helpful. We’d very much appreciate it if you would use our advertisers – by clicking to them on our blogsite – and in that way help us keep going with what we do.

Best,
Al Sklover

© 2011 Alan L. Sklover, All Rights Reserved.


Alan L. Sklover

Alan L. Sklover

Employment Attorney
and Career Strategist
for over 35 years

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and 'uncommon common sense' of Attorney Alan L. Sklover, the leading authority on "Negotiating for Yourself at Work™".

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