For certain employees, drug testing is not only constitutionally permissible, but statutorily mandated. Under the Federal Drug-Free Workplace Act of 1988, drug testing is required of both public and private employees who are engaged in work that creates high risks of danger to the health and safety of other workers or the health and safety of the public. 41 U.S.C.A. sections 701 et seq. Employees targeted for mandatory drug testing include those employed in the following industries: mass transit, motor carriers (taxi cabs and buses), aviation, railroads, maritime transportation, and natural gas and pipeline operations. In addition, the Americans with Disabilities Act (42 U.S.C.A. section 12210) and the Rehabilitation Act of 1973 (29 U.S.C.A. sections 701 et seq) allow employers to establish drug testing programs for former drug users who are currently enrolled in a drug rehabilitation program or have completed one in the past. Because courts have interpreted these laws as effectively placing former and present substance abusers on notice, employees subject to their provisions typically understand the very limited privacy rights they enjoy when it comes to employer-mandated drug tests.
Less clear cut is the application of the National Labor Relations Act (NLRA) to privacy issues in the employment setting. The NLRA guarantees employees the right to “self-organize, to form, join, or assist labor organizations, to bargain collectively … and to engage in other concerted activities for … mutual aid or protection.” 29 U.S.C.A. sections 101 et seq. The act also prohibits employers from committing “unfair labor practices” that would violate these rights. An unfair labor practice is any action or statement by an employer that interferes with, restrains, or coerces employees in the exercise of their rights to self-organize.
Employer surveillance of employee activities may constitute an unfair labor practice if the surveillance interferes with, restrains, coerces, or intimidates employees who are exercising one of their rights protected by the NLRA. At the same time, the NLRA permits employers to enforce company rules aimed at guaranteeing employee productivity and safety, and federal courts have acknowledged that workplace surveillance is sometimes necessary to achieve these objectives. However, employee surveillance will not normally withstand scrutiny under the NLRA unless a rule is actually in place before the surveillance begins.
Once a rule is in place, the lawfulness of a particular surveillance method will be evaluated on a case-by-case basis. Where union or non-union employees conduct their activities openly on or near company property, employers may lawfully observe their activities without running afoul of the NLRA, even if there is no pre-existing rule in place authorizing such observation. N.L.R.B. v. C. Mahon Co., 269 F.2d 44 (6th Cir. 1959). However, an illegal intent may be inferred from an employer’s surveillance of open activities if the surveillance is combined with other forms of employer harassment, interference, or intimidation, and the employee under surveillance is subsequently discharged. A history of anti-union animus will also weigh against an employer who is engaged in what would otherwise be deemed lawful surveillance. Conversely, what otherwise might be deemed an unfair labor practice can be made lawful if the surveillance is isolated, not accompanied by a threat, and the employer gives assurances that the employee’s job is safe.
Before conducting surveillance of its employees, employers also need to familiarize themselves with the Omnibus Crime Control and Safe Streets Act of 1968. Pub.L. No. 90-351, 82 Stat. 197, June 19, 1968;18 U.S.C.A. sections 2510-2520. Title III of the act prohibits any person from intentionally using or disclosing information that has been knowingly intercepted by electronic surveillance without consent of the persons under surveillance. As originally conceived, the act applied only to the “aural” acquisition of information by recording, bugging, wiretapping, or other devices designed to intercept and transmit sound.
Congress updated the act by passing the Electronic Communications Privacy Act of 1986 (ECPA). Pub.L. 99-508, Title I, Oct. 21, 1986, 100 Stat. 1848. ECPA governs the interception of data transmissions, which comprise the bulk of modern electronic communications. ECPA prohibits anyone from intercepting, accessing, or disclosing electronic communications without first getting authorization from the parties to the communication. However, ECPA does permit employers to monitor employees’ electronic communications if the monitoring is done in the regular course of business, regardless of whether the communication involves a data or sound transmission, so long as the employer is the provider of the communication system being monitored. Thus, an employee’s use of intra-company email is generally fair game for employers’ to monitor. However, employees who transmit messages from work via a third-party email provider, such as Yahoo!, may create a reasonable expectation of privacy that insulates their communications from employer monitoring.