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

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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