Privacy and Employment Law

by John DR Craig

Overview

Workplace privacy is not simply a theoretical legal issue but is a matter of basic human dignity. Employers in a number of countries reportedly,and, it appears, in increasing numbers, are deploying “human resource policies” which may or may not be illegal. In many cases they are not, at present unlawful, though they may reflect dubious management practices. These policies include drug testing of employees, surveillance of staff and their communications, attempts to censor the freedom of speech of employees, psychometric or personality testing, and requirements to provide intimate health information irrelevant to work in order to obtain employment or promotion.



This book, the first on the subject in any jurisdiction, examines in a rigorous and open-minded fashion, the emergence of these policies in the modern employment context and the gradually developing legal response. Adopting a human rights perspective, the author demonstrates that several legal systems are now transposing human rights law from the public sphere into the employment relationship in order to protect the individual rights of job candidates and employees. The human right of privacy is one of the cornerstone rights recognised in the employment context, and is the focus of this book.



The book deals with the law as it presently stands in the UK, France, the USA and Canada and includes a careful analysis of the potential impact of the Human Rights Act 1999.

Product Details

ISBN-13:	9781841130590
Publisher:	Bloomsbury Academic
Publication date:	12/01/1999
Pages:	320
Product dimensions:	6.14(w) x 9.21(h) x 0.75(d)

About the Author

John Craig is a Barrister and Solicitor with the law firm Heenan Blaikie,in Toronto, Canada.

Table of Contents

	Preface	v
	List of Abbreviations	xv
	Table of Statutes and Other Instruments	xvii
	Table of Cases	xxi
Chapter 1	Introduction	1
1.1	The Evolution of Labour and Human Rights law in the United Kingdom	1
1.2	Workplace Privacy Law in the United Kingdom--Background	2
Chapter 2	The Right of Privacy and Competing Interests in the Employment Context	5
2.1	Introduction	5
2.2	The Prevalence of Privacy-invasive Management Practices	6
2.3	Defining Privacy and Applying it in the Workplace Context	9
2.3.1	Definitional Uncertainty and the Functional Approach	9
2.3.2	Identifying the Private Interests at Stake in the Workplace Context	15
2.3.3	Placing Value on the Private Interests of Workers	19
2.3.3.1	Autonomy	20
2.3.3.2	Dignity and Well-being	22
2.3.3.3	Healthy Relationships	24
2.3.3.4	Pluralism	25
2.3.4	The Interests of Employers and the Public which may Justify Limiting Worker Privacy	26
2.3.4.1	Improving Economic Conditions	27
2.3.4.2	Protecting the Health and Safety of Workers, Consumers, and the Public	28
2.3.4.3	Deterring and Controlling Employee Abuse of the Employment Relationship	29
2.3.4.4	Complying with Dtate-imposed Regulatory Requirements	30
2.3.4.5	Promoting the Public Interest	31
2.3.4.6	Conclusion	33
2.4	Conclusions	33
Chapter 3	Labour Law and the Right of Privacy	35
3.1	Introduction	35
3.2	Management and Organisation Theory as a Starting Point	35
3.3	Competing Approaches within Labour Law	41
3.3.1	Collective laissez-faire	42
3.3.2	Market Individualism	46
3.3.3	'Floor of Rights'	50
3.4	Conclusions	53
Chapter 4	Privacy in the Workplace in the United States	55
4.1	Introduction	55
4.2	Comparative Labour Law and the Right of Privacy	55
4.2.1	The Comparative Approach and Individual Labour Law	55
4.3	Workplace Privacy Law in the United States	58
4.3.1	Introduction	58
4.3.2	Background--the Employment-at-will Doctrine and Worker Protection	59
4.3.3	Workplace Privacy Protection in the Public Sector Workplace	61
4.3.3.1	The Constitutional Right of Privacy in the United States	61
4.3.3.2	Workplace Privacy Constitutional Jurisprudence	63
4.3.3.3	Conclusions--Constitutional Workplace Privacy in the United States	68
4.3.3.4	Information Privacy Law	68
4.3.4	Workplace Privacy Protection in the Private Sector Workplace	70
4.3.4.1	Dismissal in Contravention of Public Policy	71
4.3.4.2	The Common Law Tort of Invasion of Privacy	73
4.3.4.3	The Constitutional Right of Privacy in the State of California	77
4.3.4.4	Statutory Protection	80
4.4	Conclusions	84
Chapter 5	Privacy in the Workplace in France	87
5.1	Introduction	87
5.2	Background--the Right of Privacy in French Law	89
5.3	The General Right of Privacy in French Labour Law	91
5.3.1	The Right of Privacy under French Law (Civil Code and Article L.120-2)	92
5.3.2	The Right of Privacy under the European Convention on Human Rights	95
5.4	Specific Provisions of French Labour Law Protecting the Right of Privacy	98
5.4.1	Information Privacy Law (the Law of 6 January 1978)	100
5.4.1.1	The Substantive, Procedural and Institutional Features of the Law	100
5.4.1.2	The Operation of the Law and the Activities of the CNIL in the Workplace Context	102
5.4.1.3	Conclusion	106
5.5	Institutional and Procedural Features Unique to French Law	106
5.6	Conclusions	109
Chapter 6	Privacy in the Workplace in Canada	111
6.1	Introduction	111
6.2	Background--Canadian Employment Law	113
6.3	The Right of Privacy in Canada	114
6.4	Workplace Privacy Protection in the Public Sector Workplace	116
6.4.1	Workplace Privacy under Section 8 of the Charter	116
6.4.2	Information Privacy Law	117
6.4.2.1	Revenue Canada (1991-2)	120
6.4.2.2	St Lawrence Seaway Authority (1992-3)	121
6.4.2.3	Canada Post Corporation (1994-5)	122
6.4.2.4	Conclusion	123
6.5	Workplace Privacy Protection in the Private Sector Workplace	125
6.5.1	Privacy in Arbitral Jurisprudence	125
6.5.2	Statutory Protection of Privacy	131
6.5.2.1	The Statutory Right of Privacy	131
6.5.2.2	Anti-discrimination Law	132
6.5.3	Workplace Privacy in the Province of Quebec	138
6.5.3.1	Quebec's Charter of Human Rights and Freedoms	138
6.5.3.2	Quebec's Law of Information Privacy	140
6.6	Conclusions	141
Chapter 7	Seven Legal Principles	143
7.1	Introduction--Convergence, Divergence and Harmonization	143
7.2	Legal Principles for the Protection of the Right of Privacy in the Workplace	146
7.2.1	Principles Concerning the Scope of Application of the Right of Privacy	146
7.2.1.1	Principle 1: Comprehensive Application Regardless of Status	146
7.2.1.2	Principle 2: Floor-of-Rights Application	156
7.2.2	Principles Concerning Competing Candidate/Employee, Employer and Public Interests	157
7.2.2.1	Principle 3: Legitimate and Substantial Limitations	157
7.2.2.2	Principle 4: Sufficiency of Limitations Premised on Third Party Interests	163
7.2.2.3	Principle 5: Insufficiency of Limitations Premised on Economic Interests	163
7.2.2.4	Principle 6: Least Restrictive Means	164
7.2.3	Principle 7: Procedural and Other Safeguards Related to Informational Private Interests	167
7.3	Conclusions	170
Chapter 8	Employment Drug Testing	171
8.1	Introduction	171
8.2	Competing Policy Approaches to Controlling Drugs	171
8.3	Forms of Drug Testing Policies	173
8.4	Methods and Limitations of Drug Testing	174
8.5	The Impact of Drug Testing on Private Interests	176
8.5.1	Personal/Corporeal Private Interests	177
8.5.2	Informational Private Interests	177
8.5.3	The Significance of These Interests	179
8.5.4	Conclusion	180
8.6	Justifications for Drug Testing	180
8.6.1	Economic Conditions	180
8.6.2	Health and Safety	183
8.6.3	Abuse Deterrence	185
8.6.4	Regulatory Compliance	186
8.6.5	Public Policy	186
8.6.6	Conclusion	187
8.7	Reconciling Candidate/Employee, Employer and Public Interests	188
8.7.1	Reconciling Competing Interests (Principles 3, 4 and 5)	188
8.7.1.1	Weighing the Private Interests at Stake	188
8.7.1.2	Weighing the Employer and Public Interests at Stake	188
8.7.1.3	Conclusion	192
8.7.2	Ensuring that the Least Restrictive Means are Adopted (Principle 6)	192
8.7.2.1	Alternatives to Drug Testing	192
8.7.2.2	Individualization and Particularisation	195
8.7.2.3	Conclusion	197
8.7.3	Guaranteeing Procedural and Other Safeguards (Principle 7)	198
8.8	Conclusions--a Law Governing Employment Drug Testing	200
Chapter 9	Employment Genetic Testing	203
9.1	Introduction	203
9.2	The Science of Genetics and the Human Genome Project	203
9.3	Testing for Genetic Conditions	206
9.3.1	The Purposes Served by Genetic Testing	207
9.3.2	Methods of Genetic Testing	208
9.3.3	The Value of the Information Obtained from Genetic Testing	209
9.4	Genetic Testing in the Workplace	211
9.5	The Impact of Genetic Testing on Private Interests	213
9.5.1	Personal/Corporeal Private Interests	214
9.5.2	Informational Private Interests	214
9.5.3	The Significance of These Interests	215
9.5.4	Conclusion	217
9.6	Justifications for Workplace Genetic Testing	218
9.6.1	Health and Safety	218
9.6.2	Economic Conditions	221
9.6.3	Public Policy	224
9.6.4	Conclusion	224
9.7	Reconciling Candidate/Employee, Employer and Public Interests	225
9.7.1	Reconciling Competing Interests (Principles 3, 4 and 5)	225
9.7.1.1	Employment Genetic Screening	225
9.7.1.2	Employment Genetic Monitoring	227
9.7.2	Ensuring that the Least Restrictive Means are Adopted (Principle 6)	229
9.7.2.1	Alternatives to Mandatory Genetic Testing	230
9.7.2.2	Individualisation and Particularisation	231
9.7.2.3	Conclusions	232
9.7.3	Guaranteeing Procedural and Other Safeguards (Principle 7)	233
9.8	Conclusions--a Law Governing Employment Genetic Testing	235
Chapter 10	The Emerging Law of Workplace Privacy in the United Kingdom	237
10.1	Introduction	237
10.2	Privacy and Labour Law in the United Kingdom	238
10.3	Incorporation of the European Convention on Human Rights	242
10.3.1	The Immediate Impact of Convention Incorporation	243
10.3.2	Convention Incorporation in the Long Term	246
10.4	Implementation of the European Directive on Data Protection	247
10.4.1	The 1984 Data Protection Act and the Directive	248
10.4.2	Implementation of the Directive through the 1998 Act	251
10.4.2.1	Reforms in the 1998 Act with a Direct Impact upon Employment	252
10.4.2.2	The Substantive Regulation of Information Collection in Employment	254
10.4.2.3	Interpreting the 1998 Act to Ensure a Protective Regime Governing Information Collection	256
10.4.2.4	Information Collection under the 1998 Act	262
10.5	Conclusions	262
Appendix	Glossary of Terms	265
	Bibliography	269
	Index	285

Editorial Reviews

With the Human Rights Act 1998 about to come fully into force, a book on the protection of private interests in the workplace appears at the right time.a valuable and clear introduction to a debate which is likely to become more prominent in the future.” —Industrial Law Jourbanal

“…a thorough and comparative analysis of the theory and practice of privacy protection in the workplacea welcome addition to the literature.” —The Law and Politics Book Review

From the Publisher