Privacy in Employment Law, Fourth Edition with 2016 Cumulative Supplement

This treatise analyzes employee/employer rights and the limits of employer authority in securing information about applicants and employees, disclosing such information, and controlling activities in the U.S. workplace, as addressed fragmentally in state and federal constitutions, statutes and court decisions.



Know the extent—and limits—of individual rights and employer authority in this litigious area of workplace law

Privacy in Employment Law, Fourth Edition offers guidance on employee/employer rights and the limits of employer authority in securing information about applicants and employees, disclosing such information, and controlling activities in the U.S. workplace. This treatise is a dependable reference on the law of privacy as addressed fragmentally in statutes and court decisions.

The author has meticulously assembled citations, definitions, practical examples, and guidance to help practitioners assess present legislation and judicial thinking on key issues in employment privacy. Privacy in Employment Law provides lists of relevant state laws addressing topics relating to workplace privacy, including drug testing, access to personnel files, lie detection, electronic monitoring, and more, in addition to offering text of selected foreign statutes and the European Union (EU) directive on privacy law. 

Recent developments highlighted in this rapidly changing area that are reflected in the Fourth Edition include: 

  • New legislation in 10 states that regulates employer access to applicant and employee social media
  • New legislation in nine states that regulates use of information on credit-worthiness as a basis to deny employment 
  • The continuing judicial conflict on the standards governing employer monitoring of employee communications conducted via company-provided equipment, including the question of whether a blanket privacy disclaimer is sufficient to insulate employers from liability
  • The continuing judicial conflict on whether an employee accessing an employer’s data for ulterior purposes violates federal law and whether such access is “unauthorized”

The new Fourth Edition also discusses whether a GPS device may be attached to an employee’s private vehicle by a public employer; whether an applicant’s status as unemployed may be used to deny consideration for employment; whether use of marijuana that is lawful under state law may be a ground for termination or for denial of unemployment compensation benefits; whether an employee may leave a firearm in a vehicle on the employer’s premises; and more.

Author Matthew W. Finkin was quoted in a Wall Street Journal article, “Employers Have Latitude in Monitoring Workers,” October 22, 2013. (Requires WSJ subscription to view.)

 New analysis in the 2016 Cumulative Supplement covers: 

  • Revised EEOC rules on “wellness” programs – defining permissible incentives to participate, voluntariness, and spousal disclosure of genetic information
  • ADA medical confidentiality for information disclosed to an employer directly by an employee
  • Revised OSHA rule on the relationship of drug testing to the reporting and recording of occupational injuries
  • New cases under the Fair Credit Reporting Act (FCRA) refining questions including: the need to show 
  • damages in order to have standing, distinction between background checks and investigations into misconduct, the nature of adequate notice, of pre-adverse action, damages, and willfulness
  • The status of a video tape as a “personal record” required to be retained under EEOC rules
  • The expectation of privacy in an office computer, of “swipe card” records of premises entrance and exit, and in a locker room, or in conversations inadvertently transmitted by a “pocket dialed” cell phone
  • Whether reports made to the government are absolutely or qualifiedly privileged
  • The lawfulness of an employer’s creation of a workplace permeated with the owner’s religious values
  • Whether obesity that is not the product of a medical condition is subject to ADA protection
  • Employer use of expressions to friends on social media as grounds for discharge or ineligibility for unemployment compensation benefits
  • The new EU data protection Regulation, the EU-US “Privacy Shield” agreement and the option of “binding corporate rules” to allow U.S. multi-national to transfer employee data from the EU to the U.S.



Bloomberg BNA authors and editors are practicing professionals with insider perspectives and real-life experience. Learn more about this book’s authors and editors.
Matthew W. Finkin is the Albert J. Harno and Edward W. Cleary Chair in Law at the University of Illinois, where he also holds appointments in the Center for Advanced Study and the School of Labor and Employment Relations.


View full tables of contents and read the book’s preface or introduction.