The Privacy Act of 1974

THE PRIVACY ACT OF 1974

The Privacy Act of 1974 seeks to protect individuals from unjustified invasions of their privacy by restricting the disclosure of personal information that is collected and maintained by federal agencies.

Particularly, the Act seeks to protect information relating to a person’s:

* education

* financial transactions

* medical history

* criminal history

* employment history

To qualify as a protectible record, the information must include a name or other identifying information.

Generally under the Act, federal agencies are required by the Act to only maintain that personal information that is relevant and necessary to accomplish a governmental purpose. Agencies are also directed, where practicable, to collect required personal information directly from the individual.

The protections of the Privacy Act are balanced by the requirements of the Freedom of Information Act (FOIA), which was designed to provide the public with access to important governmental records. Generally, however, the rights of the two Acts do not conflict. The FOIA specifically excludes from disclosure personnel and medical files that would constitute a clearly unwarranted invasion of personal privacy. It also excludes from disclosure records compiled for law enforcement purposes that could reasonably be expected to constitute an unwarranted invasion of personal privacy. To determine whether disclosure constitutes a clearly unwarranted invasion of personal privacy, courts balance the harm to the individual whose privacy interest is breached against the public interest served by disclosure.

Courts have often applied the Privacy Act to requests for employment records. Following are several examples of court holdings limiting disclosure of employment records based upon the Act:

* One court ruled that a federal agency would have violated the Privacy Act by providing names and addresses of employees to labor union.

* Another court held that a federal agency would have violated the Privacy Act by providing labor union list of all employees with high performance ratings.

The Privacy Act grants individuals a limited right to access and inspect all personal information maintained by federal agencies about them. After such an inspection, individuals may request corrections of any information that is determined to be untimely, inaccurate, irrelevant, or incomplete.

Regulation of Common Situs Picketing–Neutral Sites

REGULATION OF COMMON SITUS PICKETING–NEUTRAL SITES

Picketing is a tool commonly used by labor unions to publicize the existence of a labor dispute with a particular employer. The Labor Management Relations Act, which imposes certain restrictions on union activity and prohibits unfair labor practices by both employers and unions, recognizes different types of picketing and places restrictions on certain types of picketing. One type of picketing that garners particular scrutiny is common situs picketing, which occurs where an employer’s work site that is targeted for union picketing is also the work site of another employer. Because common situs picketing will unavoidably effect employees and employers who are not involved in the labor dispute at issue, common situs pickets have been subject to special rules.

In the context of common situs picketing, an employer involved in a labor dispute is referred to as the primary employer; any other employers represented at the site by their employees or otherwise are known as secondary employers. The rules that apply to common situs picketing depend upon whether the site is owned or operated by the primary employer or is owned by a secondary employer and thus is considered a neutral site.

The picketing of a secondary employer may only be conducted when the subject of the dispute is actually present at the secondary employer’s site. An example of this restriction can be seen in the case of a trucker’s union strike. If the primary employer’s trucks are making deliveries to a customer company, which is considered a secondary employer, the trucker’s union may only strike when the trucking company’s trucks are actually at the secondary employer’s site. Once the trucks leave the site, the picketing must cease. In addition, the primary employer must be engaged in its normal business at the secondary employer’s site; thus, if the trucking company’s trucks were driven to a repair shop for maintenance, the trucking union could not picket at the repair shop.

Picketing at a neutral site must be limited to areas that are reasonably close to the subject of the dispute; in the trucking company example, that would be the loading dock at which the trucks were making deliveries. If the secondary employer does not allow the union members to enter the property, the picketers are required to conduct the picket as near the gate where the trucking company’s trucks entered as practicable. The trucking union would not be allowed to picket another gate, for example, where the employees of the neutral site entered the property.

Finally, picketing at a neutral site is required to clearly express the fact that the dispute is with the primary employer and must avoid even the suggestion that the dispute is with the secondary employer.

Construction sites are a type of common situs that has received special attention under picketing rules because they are typically populated with employees of several employers at one time. Regardless of the close interrelationships between the various crafts being performed at a construction site, the rule is that all construction employers are deemed neutral with regard to the labor disputes of the other employers. Accordingly, in order to conduct a picket at a construction site, a union must observe all the regular rules regarding neutral sites. In addition, a general contractor may establish separate points of entry onto the site for each separate employer on the site in order to insulate the other employers’ workers from a picket directed at one of the employers represented at the site.

Personnel File Retention Requirements–the Age Discrimination in Employment Act

PERSONNEL FILE RETENTION REQUIREMENTS–THE AGE DISCRIMINATION IN EMPLOYMENT ACT

Congress enacted the Age Discrimination in Employment Act of 1967 (ADEA) to prevent employment discrimination on the basis of age against persons 40 years of age or older. The ADEA applies to most American employers with 20 or more employees. To aid in enforcement efforts of the ADEA, implementing regulations require covered employers to retain a number of employment records for specified periods of time.

Pursuant to these Equal Employment Opportunity Commission (EEOC) regulations, covered employees are required to retain for at least three years payroll or other records relating to an employee’s:

* Name

* Address

* Date of birth

* Occupation

* Rate of pay

* Compensation earned each week

Furthermore, if an employer uses records related to the following in its regular course of business, it is required to retain them for a period of one year from the date of their making or from the date of any employment action to which the records relate, whichever is later:

* Hiring

* Promotion, demotion, transfer, selection for training, layoff, recall, or discharge

* Job orders submitted by the employer to an employment agency or labor organization for recruitment of employees

* Test papers completed by applicants

* The results of any physical examination where such examination is considered by the employer in connection with any personnel action

* Advertisements or notices to the public or to employees of job openings, promotions, training programs, or opportunities for overtime work

All records required to be kept under ADEA regulations are to be retained in a safe and accessible place at the place or employment or business at which the employee or applicant has worked or applied. Alternatively, an employer has the option of storing these records at a central recordkeeping office.

All records required to be retained under ADEA regulations are to be available for inspection by EEOC employees during regular business hours. Records retained at a central recordkeeping office are to be made available within 72 hours of an EEOC request.

Employers may seek an exemption from the regulations’ specific recordkeeping requirements by setting forth the reasons for the exemption and by proposing alternative recordkeeping procedures. The EEOC has the authority to accept or reject an employer’s proposal. Until such time as the EEOC makes such a decision, however, the employer must continue to follow the requirements set forth by the regulations.

Disability Discrimination in the Federal Workplace

DISABILITY DISCRIMINATION IN THE FEDERAL WORKPLACE

Before the passage of the Americans with Disabilities Act of 1990 (ADA), which prohibits discrimination against private sector employees and applicants on the basis of disability, Congress passed the Rehabilitation Act of 1973. The Rehabilitation Act prohibits disability discrimination in the federal employment sector.

Disability discrimination under the Rehabilitation Act occurs when a person with a disability who can perform the essential functions of a job with or without reasonable accommodation is denied an opportunity to perform that job because of his or her disability. A 1992 Amendment to the Rehabilitation Act establishes that Rehabilitation Act violations are established using the same standards of proof as those used to establish employment-related violations of the ADA.

The Rehabilitation Act requires federal agencies and certain government contractors to implement affirmative action programs to improve workplace opportunities for disabled federal employees and applicants:

Section 501 prohibits federal executive branch agencies from discriminating against people with disabilities in any employment practices, including hiring, promotions, training, firing, pay, or benefits. This section also imparts an obligation upon federal agencies and the United States Postal Service to implement affirmative action programs to promote the hiring of disabled workers.

Section 503 of the Rehabilitation Act prohibits most federal contractors and subcontractors from discriminating against disabled employees and applicants. Contractors with 50 or more employees and a contract of $50,000 or more must also implement an affirmative action program.

Section 504 of the Rehabilitation Act prohibits disability-based employment discrimination by employers receiving federal funding. This applies to any institution, agency, or organization that receives direct or indirect federal funding.

Remedies under the Rehabilitation Act

Employees or applicants believing that they have been discriminated against in violation of the Rehabilitation Act are entitled to the same remedies available to employees harmed by violations of Title VII of the Civil Rights Act of 1964. These remedies may include back pay, reinstatement, attorney fees, and hiring. Where intentional discrimination is found, punitive damages may also be awarded.

Employees filing a complaint alleging a violation of Section 501 of the Rehabilitation Act must first file a complaint with the Equal Employment Opportunity Commission (EEOC). The EEOC will investigate the complaint to determine whether the alleged violation occurred. The EEOC may dismiss the complaint or may seek a remedy on behalf of the employee or applicant. If the EEOC decides not to prosecute the action itself, the employee or applicant may file a civil action in federal court against the employer.

Accidental Injury and Workers’ Compensation Benefits

ACCIDENTAL INJURY AND WORKERS’ COMPENSATION BENEFITS

In order for an employee to obtain workers’ compensation benefits, he or she must often prove an “accidental injury” that “arose out of” and “in the course of ” the employment. Once those facts are proven, employers are strictly liable under states’ workers’ compensation systems for nearly all work-related accidents.

Accidental Injury

The workers’ compensation statutes in some states have eliminated the need to prove that an injury was “accidental.” Other statutes, however, retain the requirement. Where required to be proven, an “accidental injury” is generally defined as an “unexpected” injury. Some courts require that the injury occur “suddenly” in order to be compensable. Others find an accidental injury where the injury occurs gradually over time. Some courts have stated that when an injury occurs under normal work conditions, it is not accidental. If in doubt, courts interpret the law in favor of the employee.

The following are examples of injuries not found to be accidental:

heart attack occurring while employee was driving a snowplow during overtime hours, and
back injury occurring after employee had been servicing heating and air conditioning installments in crawl spaces for several weeks.

The following are examples of injuries found to be accidental:

asthma gradually worsened by employee’s exposure to secondhand smoke in the workplace, and
back injury occurring due to “unusual” strain on the part of the employee.

“Arising out of employment”

“Arising out of employment” generally means that there was a causal link between the injury and the employment. Different state courts use different tests to determine whether an injury arose out of the employment. Some courts have stated that an accident “arises out of employment” if the risk causing the injury was greater for the employee than for a person not engaged in the employment. Others have stated that it means that the employment contributed significantly to the injury.

“In the Course of Employment”

If an employee proves that an injury arose out of his or her employment, he or she must still prove that the injury occurred “in the course of the employment.” Most courts hold that the two requirements, though related, are distinct.

An injury occurs “in the course of employment” where it occurs while the employee is actively engaged in the performance of his or her duties during working hours, either on the employer’s property or at some place where the employment takes the employee. Misconduct by an employee is generally viewed as falling outside of the “course of employment,” even when a resulting accident occurs during working hours and on company property.

The “Going and Coming Rule”

Generally, injuries sustained by employees while traveling to and from work are not compensable under workers’ compensation statutes. These injuries are usually not found to have either arisen from the employment or to have occurred in the course of employment. As with other general workers’ compensation rules, however, there are some exceptions. The most notable exception involves situations where an employee is within a range of dangers “peculiarly associated with” the employment.

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