Worker Protective Labor Laws, Part 7
Privacy

Center for Labor Education & Research
University of Hawai‘i - West O‘ahu

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Click here for access to a helpful Glossary of Labor and Legal Terminology

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Privacy as a constitutional right is generally construed as a protection only form government infringement, rather than from violations by a private sector employer.

Legal protections for employees from privacy invasions by their employers are few. See the Through the Keyhole on the ACLU website on Workplace Privacy at: www.aclu.org/privacy/workplace/index.html


The Privacy Act, 5 U.S.C. Section 552a
A federal law passed by Congress in 1974, it establishes certain controls over what personal information is collected by the federal government and how it is used. The act guarantees three primary rights: (1) the right to see records about oneself, subject to the Privacy Act's exemptions; (2) the right to amend that record if it is inaccurate, irrelevant, untimely or incomplete; and (3) the right to sue the government for violations of the statute, including permitting others to see your records, unless specifically permitted by the act.


 

Since 1978, Article I, Section 6 of the Hawaiʻi State Constitution has provided: "The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The legislature shall take affirmative steps to implement this right."

 


The Electronic Communications Privacy Act of 1986 (ECPA Pub. L. 99-508, Oct. 21, 1986, 100 Stat. 1848, 18 U.S.C. 2510)

Originally enacted as an amendment to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the Wire Tap Statute), which was primarily designed to prevent unauthorized government access to private electronic communications.

The ECPA was itself amended by some provisions of the USA PATRIOT Act, though Section 2709 of the Act, which allowed the FBI to issue National Security Letters to Internet service providers (ISPs) ordering them to disclose records about their customers, was ruled unconstitutional in ACLU v. Ashcroft (2004).

Federal law, which regulates phone calls with persons outside the state, does allow unannounced monitoring for business-related calls. Personal calls are aother matter. An employer realizes the call is personal, he or she must immediately stop monitoring the call. (Watkins v. L.M. Berry & Co., 704 F.2d 577, 583 (11th Cir. 1983)) However, when employees are told not to make personal calls from specified business phones, the employee then takes the risk that calls on those phones may be monitored. [CLEAR sources: Privacy Rights Clearing House, www.privacyrights.org/inquiryform.htm And Workplace Fairness, Affiliated with the National Employment Lawyers Association www.workplacefairness.org/]


Genetic Information Nondiscrimination Act, 2008 (GINA)
A Federal law (H.R.493) that protects Americans against discrimination based on their genetic information when it comes to health insurance (Title I) and employment (Title II). [see Discrimination Laws part 5, GINA ]


Health Insurance Portability and Accountability Act of 1996 (HIPAA), (Public Law 104-191)
Effective April 14, 2003 this law protects the privacy of individuals' health information.

Title I of HIPAA protects health insurance coverage for workers and their families when they change or lose their jobs. Title II of HIPAA, known as the Administrative Simplification (AS) provisions, requires the establishment of national standards for electronic health care transactions and national identifiers for providers, health insurance plans, and employers.

HIPAA covered entity cannot use or disclose protected health information for any purpose other than treatment, payment, or health care operations without either the authorization of the individual or under an exception in the HIPAA regulations. Covered entities include health care providers, health plans (including employer's sponsored plans), and healthcare clearing houses (e.g., billing agent). SU, SHC, and LPCH will be HIPAA covered entities as both health care providers and through their HR sponsored health benefit plans. Research is not considered to be treatment, payment, or health care operations.

In addition to limiting the use and disclosure of protected health information, HIPAA also gives the patients the right to access this information and to know who the covered entity has disclosed this information to (including investigators' research files). It also restricts most disclosures to the minimum to accomplish the intended purpose and establishes criminal and civil penalties and fines for improper use and disclosure by HIPAA covered entities.

The U.S. Department of Health and Human Services Office for Civil Rights is responsible for implementing and enforcing the privacy regulations. See their website at: www.hhs.gov/ocr/hipaa/ and factsheet .


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