New laws that went into effect on January 1, 2014, are a harbinger of what employers may expect to see in the coming year regarding workplace privacy: more restrictions on access to applicants’ and employees’ criminal history, credit information, and personal social media content. Employers will now be required to grapple with next-generation issues raised by the use of social media as a business tool and the increasing adoption of “bring-your-own-device” (BYOD) programs. The ever-shifting balance between employer prerogative and employee privacy likely will continue to move in a direction that favors employee privacy. First, legislators, enforcement agencies, and the plaintiffs’ bar will likely continue their efforts to narrow the scope of information that employers can consider when making employment decisions about applicants and employees. Second, technology will continue to blur the lines between work and personal life, with personal life expanding into work life – not the other way around. However, the widening scope of the NLRA and the increasing number of countries with broad data protection laws will compel employers to tolerate this “intrusion” of personal life into work. Employers should: Review existing practices for collecting and using information; Implement a social media policy; Require that all U.S. employees execute a BYOD user agreement; and Evaluate whether local law will permit the employer to take the necessary steps to safeguard corporate and customer data before rolling out a BYOD program to non-U.S. employees.
