Privacy & Workplace Surveillance

Medical Privacy

Social Networking & Computer Privacy

Social Media in the Workplace – State Laws

Marijuana and the Workplace

Workplace Searches

Surveillance at Work

Off-Duty Conduct

Dress Codes and Grooming

Credit Checks

Criminal Records

State Laws on Employee Arrest and Conviction Records

Ban the Box – State Laws on Criminal Records

Drug Testing

Wellness Programs in the Workplace

 

Medical Privacy


What types of medical information might be part of my employer's records about me?

Medical records are created when you receive treatment from a health professional such as a physician, nurse, dentist, chiropractor, or psychiatrist. Records may include your medical history, details about your lifestyle (such as smoking or involvement in high-risk sports), and family medical history.

In addition, your medical records contain laboratory test results, medications prescribed, and reports that indicate the results of operations and other medical procedures. Your records could also include the results of genetic testing used to predict your future health. And they might include information about your participation in research projects.

Information you provide on applications for disability, life, or accidental insurance with private insurers or government programs can also become part of your medical file.

All of these types of medical records present privacy implications for you as an employee, if there is a possibility of your employer accessing this information.

For medical files that are covered under the HIPAA Privacy Rule, all individually identifiable information is protected. Individually identifiable information is information, including demographic data, that relates to:

  • The individual’s past, present, or future physical or mental health condition,
  • The provision of health care to the individual, or
  • The past, present, or future payment for the provision of health care to the individual.


Do I have a right to have my medical information kept private in the workplace?

Your employer has a number of ways to obtain medical information about you, whether it’s because you volunteer it when you call in sick or tell co-workers, or because you provide requested information on health insurance application or workers compensation claim forms. However, just because your employer has the information does not mean that it should be shared with everyone in the workplace, especially when you have not chosen to do so.

The basic legal principle that employers should follow is not to reveal medical information about you unless there is a legitimate business reason to do so. But because that standard is fairly vague, there are laws which more specifically protect the privacy of your medical records, such as the Americans with Disabilities Act, the law which makes it illegal to discriminate on the basis of an employee’s disability. State laws may also provide additional protection.

The HIPAA Privacy Rule may control how a health plan or covered healthcare provider discloses protected health information to an employer, including your manager or supervisor if you are a patient of the provider or a member of a health plan. However, it does not protect your employment records even with respect to health related information. Therefore, the Privacy Rule does not prevent a supervisor from asking you for a doctor’s note if the employer needs the information for administrative purposes such as sick leave or workers’ compensation. However, your employer cannot obtain information about you from your health care provider directly without your authorization, unless other laws require them to disclose it. However, if you work for a health plan or a covered health care provider, the Privacy Rule does not apply to your employment records.


Can an employer require me to take medical tests in order to be hired?

Under the Americans with Disabilities Act, an employer may not ask a job applicant whether they have a disability (or about the nature of an obvious disability). Furthermore, you cannot be required by an employer to take a medical examination before you are offered a job. Following a job offer, however, an employer can condition the job offer on your passing a required medical examination, but only if all entering employees for that job category have to take the exam and the exam is job-related and consistent with the employer’s business needs. (You cannot be singled out for an exam merely because you have, or your employer believes you have, a disability.)

However, an employer cannot reject you because of information about your disability revealed by the medical examination, unless the reasons for rejection are job-related and necessary for the conduct of the employer’s business. The employer cannot refuse to hire you because of your disability if you can perform the essential functions of the job with an accommodation.

The results of all medical examinations must be kept confidential and maintained in separate medical files apart from your regular personnel files.

For more information, see our website’s page on disability discrimination.


Can my employer require me to take medical tests in order to keep my job?

Under the Americans with Disabilities Act, once you have been hired and started work, your employer cannot require that you take a medical examination or ask questions about your disability unless they are related to your job and necessary for the conduct of your employer’s business. For example, if you appeared to be homicidal or suicidal, your employer might have a duty to require a psychological exam and/or inform your coworkers, to keep the workplace safe.

However, your employer may conduct voluntary medical examinations that are part of an employee health program and may provide medical information required by State workers’ compensation laws to the agencies that administer such laws.

The results of all medical examinations must be kept confidential and maintained in separate medical files apart from your regular personnel files.

For more information, see our website’s page on disability discrimination.


I've heard about a law, HIPAA, which protects the privacy of my medical records. Does this law protect me at work?

The federal Health Insurance Portability and Accountability Act (HIPAA) sets a national standard for privacy of health information, which applies to how medical records are used and disclosed. Entities covered by HIPAA must:

 Give notice of written privacy procedures;

 Place restrictions on the use of health information; and,

 Appoint a privacy officer and train staff.

But the law only applies to medical records maintained by health care providers, health plans, and health clearinghouses–and only if the facility maintains and transmits records in electronic form. Any health-related information which exists outside of health care facilities and the files of health plans is not covered by HIPAA, which means that workplace health records that relate to other employee benefits such as life insurance, disability, workers compensation, or long-term care insurance are not covered. Nor are records that relate to your employer’s compliance with laws that govern safety and health risks in the workplace.

How you’re protected by HIPAA in the workplace in conjunction with employer-provided health insurance depends on whether your employer has you enrolled in a group health plan, or whether your employer is self-insured.

You may also ask that your health information not be shared for advertising or marketing and may ask your doctor or pharmacy to not share your protected health information with your health plan, if you pay out of pocket for an item or service.


I am part of a group health plan at work. How does HIPAA protect my health information?

If you are a member of a group health plan, your employer pays a premium to the health plan which covers your health care costs. In return for the premium paid, the health care plan assumes the risk of paying for your health care expenses covered by the plan.

Group health plans are covered by the HIPAA Privacy Rule as long as the plan has 50 or more participants. The HIPAA Privacy Rule applies to the plan itself, but not your employer, but still attempts to limit the use of medical information for employment purposes.

Under HIPAA, the group health plan can tell your employer whether you are enrolled in the plan or not, and can provide the employer with “summary information” that it can use to evaluate and compare premium bids or changes in coverage. If the health information your employer receives goes beyond the basic summary, then HIPAA requires the employer to establish procedures to keep the information private much like that of an entity that is covered by HIPAA. However, a fully insured group health plan that does not create or receive protected health information other than summary health information and enrollment or unenrollment information is not required to have or provide a notice of privacy practices. Most health plans are also required to avoid intimidation or any retaliatory acts and from requiring an individual to waive their privacy rights.


My employer is self-insured. How does HIPAA protect my health information?

Self-insured plans are health plans often offered by large employers as an employee benefit, in which the employer itself assumes the risk of health care costs and pays health care claims out of the company’s operating funds. Some companies process their own claims internally, using company personnel, while other companies contract out the work of processing and maintaining the records to another company.

It can be scary to have such a close relationship between your boss and the person who processes your health claims: you may not really want Jane in the HR department knowing that you’re seeing a psychiatrist, that your husband just had a vasectomy, or that you’ve been diagnosed with cancer, when she’s the person you go to when you’re having problems with your supervisor.

Under HIPAA, if your employer is also the insurer of your health benefits, it is in a category called a “hybrid” entity, which means that the portion of the company’s operations that deal with processing health claims is covered by HIPAA. Although HIPAA requires that hybrid entities erect “firewalls” between the parts of the company handling health claims and the parts that do not, it is not yet clear whether this procedure is enough to be effective against the disclosure of private medical information. If you work for a company that is self-insured, and you believe there has been unauthorized disclosure of your medical records within your company, you may want to consult with a local attorney to determine whether the policy appears to violate any laws.


When I was injured at work, I was required to go to the company's health clinic. Will the information I gave the doctor be disclosed to my employer?

An on-site health clinic at your place of employment may be another example of what the HIPAA Privacy Rule calls a “hybrid” entity. This depends on whether the health clinic transmits information electronically and engages in standard transactions under HIPAA’s electronic data interchange rule (for example, if the clinic bills an employee’s health plan). If so, the records maintained by the health clinic are subject to the same protections that apply to other covered entities. However, if the clinic does not transmit information electronically or bill your employer, it would be specifically excluded from HIPAA’s protections.

Before you disclose any information to the company’s health clinic that you would not want your employer to know, you should ask whether the clinic is subject to HIPAA or has a privacy policy that governs how your medical information is used.


My company has an employee assistance program (EAP) which I have used to receive mental health counseling. Will any information I reveal to my counselor be kept confidential from my employer?

An employee assistance program may be another type of “hybrid” entity, depending on how its information is transmitted and transactions are conducted. If so, the records maintained by the health clinic are subject to the same protections that apply to other covered entities. “Referral only” EAPs, which provide only referrals to mental health counselors are not subject to HIPAA, nor are EAPs provided through a disability income insurance policy.

Before you disclose any information to a counselor through the EAP program that you would not want your employer to know, you should ask whether the program is subject to HIPAA or has a privacy policy that governs how your medical information is used and whether a release of information is required in the event the employee seeks an accommodation for a physical or emotional problem. However, if any instances of child abuse or neglect are suspected, then the employer must report it to State or local authorities.


Who can my employer disclose my health information to?

The Americans with Disabilities Act recognizes that employers may sometimes have to disclose medical information about applicants or employees. Therefore, the law contains certain exceptions to the general rule requiring confidentiality. Information that is otherwise confidential under the ADA may be disclosed:

 To supervisors and managers where they need medical information in order to provide a reasonable accommodation or to meet an employee’s work restrictions;

 To first aid and safety personnel if an employee would need emergency treatment or require some other assistance (such as help during an emergency evacuation) because of a medical condition;

 To individuals investigating compliance with the ADA and with similar state and local laws; and,

 As required for workers’ compensation claims (for example, to a state workers’ compensation office in order to evaluate a claim) or for insurance purposes.


Does HIPAA prohibit employers from announcing things like births, employee hospitalizations and medical emergencies to other employees?

If the information is not necessarily medical in nature, and the employee directly and voluntarily disclosed the information to the employer, the HIPAA privacy rule most likely does not apply. However, discussions about medical related information is specifically protected by HIPAA. Employers should not disclose medical information about employees to other employees without consent.


I recently learned I am HIV-positive. Do I need to disclose this information to my employer?

Most job applicants or employees who live with HIV do not have to disclose their HIV status to their employers. The only exception is if you work at a job where HIV infection poses a direct threat to the health of others, like if you work as a surgeon or other health care worker performing invasive procedures. Not every health care worker has public contact. HIV-positive chiropractors, manicurists, food handlers, chefs, bank tellers, veterinarians, hairdressers, and barbers do not pose a direct threat.

Otherwise, it is your choice whether or not to disclosure your HIV status to your employer, for example, if you need an accommodation of your disability, or wish to take leave covered by the Family & Medical Leave Act. It is important to note that your insurance company may provide usage reports to your employer which contain how much care employees are using and for a small employer it may be possible to figure out whose claims are related to HIV/AIDS.


Do I need to disclose my HIV status or medical condition in order to receive a reasonable accommodation of my disability?

It is not legally required or otherwise necessary to disclose your HIV status (or any medical condition) to your employer in order to receive a reasonable accommodation of your disability.

To receive accommodation of your disability, you have to identify yourself to the employer as a person living with a disability, but you do not have to identify the specific disability or diagnosis. To request accommodation, you must tell your employer what your functional limitations are.

For example: You do not have to request reasonable accommodation for your HIV-related diarrhea. Instead, you request reasonable accommodation because your disability limits your ability to stay at your workstation without more frequent bathroom breaks. When you request the reasonable accommodation, it is important to clearly state what you need and you may possibly need a doctor’s note to support the request.


Do I need to disclose my HIV status in order to receive family/medical leave?

It is not legally required or otherwise necessary to disclose your HIV status (or any medical condition) to your employer in order to receive family and medical leave.

To receive family and medical leave, all you have to communicate is information sufficient for the employer to understand that you need leave for FMLA-qualifying reasons. In other words, you do not need to mention FMLA or your diagnosis when requesting leave, but must only explain why the leave is needed. While your employer can request medical certification from your health care provider of your need for leave, all your health care provider must communicate is a description of the serious health condition, the date that the condition began or treatment became necessary, and the expected duration of the condition or treatment.


I recently disclosed my HIV status to my supervisor to explain why I needed medical leave for doctor's appointments. Is the person I told legally required to keep this information confidential?

As discussed in the previous two questions, it is not legally required or otherwise necessary to disclose your HIV status to your employer in order to receive either family and medical leave or a reasonable accommodation of your disability.

However, if you have already disclosed your HIV status to your employer, you may be protected by state laws regarding the confidentiality of medical information and/or an HIV/AIDS diagnosis. Some state laws apply only to health care providers, and not employers. If you have concerns about what your employer is required to keep confidential, you may want to consult with a local attorney or legal services agency which provides services to persons living with HIV to determine whether a disclosure of your HIV status would violate any laws.


Can an employer refuse to hire me on the basis of genetic testing that revealed I am at higher risk to develop a rare disease?

No. Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), is a federal law which prohibits genetic information discrimination in employment.

If your employer requires genetic testing, or appears to be discriminating against you on the basis of a genetic test, you may want to consult with a local attorney.


I recently downloaded a Fitness or Health App to track my results. Can my personal information be disclosed to third parties or used against me?

While applications on cell phones and websites can provide many benefits and convenient advantages, it is important to be aware of how your personal data could be released to third parties. Although Fitness and Health Apps are popular and widespread today, some apps may gather your personal health information not only for your personal use but to ultimately sell it to third parties. Your personal data is valuable to third party companies as they may use this information for marketing or financial risk profiling. For example, your weight, diet or exercise patterns are valuable to third parties and this information could potentially be used against you as third parties are not subject to HIPAA privacy regulations.

While the FDA regulates the safety and effectiveness of these devices, they do not regulate the storage or disclosure of your personal information. Because this area of advancing technology has not been addressed by legislation or litigation, it is important to be aware of the disclosure of your data. Some companies such as Apple have taken steps to protect collected and stored data on their devices, however it is unclear who is monitoring the apps. It is also important to take the time to read electronic contracts as some companies may obtain a consumer’s consent to share personal data with third parties.


What can I do if my privacy rights have been violated by my employer?

How you can respond to an unauthorized disclosure of your medical information depends on what law or laws were violated by the disclosure: the ADA, HIPAA, or state protections. Some laws allow what is called a “private right of action,” which means that you can sue in court, while others require that you file with an administrative agency. If you believe your privacy rights have been violated, you may want to consult with a local attorney to determine whether your employer has violated any laws, and if so, how you should proceed. In the event that a covered entity or a business associate committed a violation, you may file a complaint with the Office for Civil Rights (OCR) who will investigate the complaint. In order to file the complaint, you must file the complaint in writing, name the covered entity or business associate involved, describe the act you believe violated the privacy requirements and file within 180 days of when the act or omission occurred. OCR may extend the 180 day period of you can show good cause.


Is my protected health information still protected if a nurse discusses it with a person such as an attorney who is not a covered entity?

HIPAA requires healthcare providers who are covered entities such as nurses to protect patient privacy by not using or disclosing protecting patient health information except as required under federal and state law. However in the event that a nurse needs legal advice about a patient, the nurse may disclose and discuss protected healthcare information with an attorney but under specific circumstances.

Federal whistleblower regulations exist to protect the employee who in good faith discloses protected health information to the attorney for the purpose of obtaining legal counsel otherwise this would otherwise violate the HIPAA standards that apply to covered entities. However this information must be disclosed carefully and de-identified so the disclosure would not disclose any identifying information and would appear as Patient A, Patient B. Also, it is best to have the employee write a summary without including any names or identifying information for the patients in question.

Social Networking & Computer Privacy


What is social media and social networking?

Social media is considered any form of electronic communication through which users create online communities to share information, ideas, messages, and other content. Social media includes internet forums, social blogs, wikis, microblogging (e.g. Twitter), social networks (e.g. Facebook), and many others. Social networking is the use of social media to communicate with others.


How does social networking and social media relate to the workplace?

In the United States, more than 2/3 of online adults use a social networking site. As a result, many employees have made comments and posted media to these websites about their employer, their employment status, and workplace issues. According to a 2007 survey, 28% of employers have fired employees for misuse of e-mails, while 30% have fired employees for misuse of the Internet. Half of all employers surveyed said they were concerned about their employees browsing social networking sites while at work. In some instances, employees have been terminated due to their comments and posts on social media websites. In other ways, employers have used social media to conduct some sort of background checks on potential hires.


Can potential employers use information from social media in the hiring process?

Employers want to ensure a potential hire is qualified and will reflect well on the company. As a result, many employers conduct a background check that includes social media. An online profile can provide information on professional credentials, career objectives, maturity and judgment, abuse of drugs or alcohol, current employment status, and other red flags.

However, there is potential discrimination if employers use personal information such as age, race, disability, religion, national origin, or gender to make a hiring decision. As a result, state and federal laws explicitly prohibit that kind of conduct.


Can an employer ask for my password to look at my social networking and social media usage?

There are no federal laws that prohibit an employer from requiring an employee or job applicant to provide their username and password for social media accounts. In the past few years, more than twenty states have enacted legislation regarding employers access to employees and applicant’s usernames and passwords. For state by state coverage, please see our page on social network & password statutes. However, the laws vary from state to state, and do not provide the same level of protection in each state. Other states are considering legislation; you can track these bills by visiting the National Conference of State Legislature’s website. For more information on this rapidly growing area of the law, contact an employment lawyer in you area.


If an employer asks for my social media password, how should I react?

Being asked for your social media password by your employer or potential employer can be a nerve-wrecking experience. As a result, you should be prepared for this question. Here are some things that you can do instead:

  • Create a fan page that is purely business and bring that up;
  • Make sure you only put information on Facebook that portrays you in a positive and professional light (but remember: you cannot control what a friend might post);
  • Say you don’t have a Facebook page (although they may search for you);
  • State you would be glad to bring up your LinkedIn or Google profile instead as that is business related;
  • State that Facebook is like a diary, something to be opened only by people with authorization;
  • Ask them to bring their page up and then search for you.


Can my employer legally monitor my computer and Internet activities?

Yes, and most employers do. Employers concerned about lost productivity, excessive bandwidth usage, viral invasions, dissemination of proprietary information and their liability for sexual and other forms of harassment when explicit documents are exchanged via e-mail or the web, believe that monitoring is an important deterrent to inappropriate Internet and computer usage.

According to the federal Electronic Communications Privacy Act (ECPA), an employer-provided computer system is the property of the employer. Therefore, employers that provide you with a computer system and Internet access are free to monitor almost everything that you do with the computer and Internet access with which you have been provided. This is especially true when an employer gives you a written policy regarding the monitoring of your computer use. Courts have generally agreed that an employee does not have a reasonable expectation of privacy when using a device owned and issued by the employer. In one case, the court ruled that even though the employer told its employees that their e-mail communications would not be intercepted, and that the employees would not be reprimanded or terminated based on the contents of their e-mails, the terminated employee could not assert that his reliance on these employer promises should prevent his termination by the employer.

Some union contracts or state laws (such as those in California), may limit an employer’s ability to monitor your computer activity. Only Connecticut and Delaware require employers to notify employees that their e-mail is being monitored, while Colorado and Tennessee require state and other public entities to adopt policies regarding the monitoring of employee’s email.

Federal laws such as the USA PATRIOT Act may also require monitoring and disclosure of suspicious employee activity to law enforcement.

Otherwise, there are few laws that have been enacted to protect your computer privacy at work.


What can my employer monitor on my computer?

The technology exists for your employer to monitor almost any aspect of your computer usage, such as:

  • Internet use
  • Software downloads
  • Documents or files stored on your computer
  • Anything that is displayed on your computer screen
  • How long your computer has been idle
  • How many key strokes you type per hour
  • E-mails (outgoing or those sent within your office)

If you can do it on your work computer or on devices such as PDAs provided for your work use, then you can expect that your employer has the ability to monitor it. Check your employer’s policies and/or personnel handbook to see if your employer has a specific policy about what monitoring it does. Even without a policy, however, your employer still may be monitoring your computer and Internet activity.


Can my employer legally monitor my e-mail?

Work Email
Generally, whatever correspondence done through a company email account is considered the property of the employer. This means that it can be monitored by the company without notice to the employee. The legal reasoning behind this is because courts have ruled that there is no reasonable expectation of privacy on a work email. Courts have also generally ruled that the interests of the employer in monitoring content of work emails outweighs the employee’s privacy interest.

Private Email
Yes, with certain limitations. Although some federal laws (Federal Electronic Communications Privacy Act, 18 U.S.C. 2511; Electronic Communication Storage Act, 18 U.S.C. 2701; Computer Fraud and Abuse Act, 18 U.S.C. 1030) and state laws generally make it illegal for employers to intercept private e-mail or use your personal log-on and password to access e-mails on an Internet Service Providers’ server, employers may monitor e-mail from the work e-mail address provided to you, or monitor any e-mail stored on your work computer. Only two states, Connecticut and Delaware, require employers to notify employees that their e-mail is being monitored.

Certain companies even have software that aids them in monitoring your e-mail. Such software pulls up any e-mails that mention “key words” such as:

  • Porn
  • Sex
  • Promise
  • Beat
  • Sure thing
  • Medication
  • Boss
  • Social Security Number/SSN
  • Patient record
  • Client file

If you want to send a private e-mail, it is best to use non-work e-mail accounts such as Yahoo! (R), MSN Hotmail (C) or Gmail (TM). However, these e-mail accounts can sometimes be monitored as well. In one case, an employer searched through an employee’s personal e-mails accounts on a company computer, gaining access to the accounts due to the storage of the employee’s user names and passwords on the computer. Although the employee won the case, employees should be aware of the potential that any saved user names and passwords on a company computer may be subject to monitoring by the employer.

It is best not to discuss non-work related or private issues at all while using your office computer, if you are concerned that your employer may be monitoring your computer activities or your employer’s policies permit computer and Internet monitoring.


Can my employer legally fire me for information that my employer has read in an e-mail?

Yes. Outgoing e-mail, or e-mail going from one co-worker to another, can be used as the basis for firing employees. Over 28% of companies say that they have fired employees for misuse of office e-mail or Internet usage, and so far, courts have usually sided with the employers.

Be careful about saying negative things about your bosses, coworkers, or the company for which you work in e-mails, especially when using your work address to send this information outside the company. Also, be very careful to check your address line before sending your e-mail, as workers have been very embarrassed – if not out of a job – when copying a private e-mail intended for only one or a few individuals to the company intranet, large distribution list, or listserv.

You may have some protection if you are communicating with your coworkers about work conditions, under laws that protect an employee’s ability to engage in “concerted activity.” If you have been fired or disciplined for complaining about your working conditions to other coworkers using e-mail, or for using your work computer for union organizing activities. Consult a labor and employment lawyer in your area to determine whether your rights have been violated. Similarly, if you use e-mail to complain about discriminatory behavior or blow the whistle, you may be protected under whistleblowing and/or antiretaliation laws.


Can my employer legally fire me for my Internet use at work?

Yes. Employers are concerned about their liability for sexual harassment and have fired workers for visiting sexually explicit and/or pornographic websites at work. They also worry about the loss of productivity caused by Internet surfing during work hours, and have fired employees for using the Internet for non-work related activities such as online shopping or sports sites.

As it is possible — and even probable in many workplaces — that your online activity is being monitored, be sure you know what your employer’s monitoring policy is before engaging in activity during work time that is not work-related. You should not visit any websites that you would not want your employer to see or that your co-workers might find offensive. While most employers do not mind if your personal internet use is occasional and doesn’t interfere with your work, some employers do mind, and expect you to confine your personal Internet usage to non-work hours.


Can my employer legally fire me for the content that I post on my personal website, blog, social networking, or social media website?

Generally, an employer can fire you for having a personal website or blog that it deems inappropriate, with very limited exceptions. Even if you have a non-work related website that you don’t access from your office, employers can fire you if they feel the content on your personal site or blog is offensive to them or to potential clients, or reflects badly on the company. For more information about how to blog without risking termination, see our site’s page on off-duty conduct.

CaliforniaColoradoConnecticutIllinoisMinnesotaNevadaNew YorkNorth Dakota, and Tennessee all have laws that prohibit employers from firing an employee for engaging in lawful conduct, or for using lawful products (ex: cigarettes) during off-duty hours. However, courts in these states will weigh the employee protections against an employer’s business interests, and typically rule that those interests outweigh employee privacy concerns and permit the employer to be exempt from the law. Some laws provide explicit exemptions for employers: in Colorado, employers are exempt if an employee’s off-work activities relate[s] to a bona fide occupational requirement, or is reasonably and rationally related to their work activities.

Some state laws regarding personnel records may protect an employee’s off-duty Internet activities. For example, in Michigan and Illinois employers cannot gather or keep information of an employee’s communications or non-employment activities, without the employee consent. However, exceptions exist in both states that allow employers to keep records of an employee’s criminal activity, activity on the employer’s property, or activity on the employer’s time which may cause damage to the employer’s business. Outside of these exceptions, employers may be liable for violating these laws or retaliating against an employee on the basis of improperly gathered information.

Although an employer might be able to legally fire you for your content on social networking and social media websites, the National Labor Relations Board (NLRB) has stated that, under Section 7 of the National Labor Relations Act (NLRA), workers’ social networking and social media usage can be protected if it is “concerted activity” for the purpose of collective bargaining, mutual aid or protection. Thus, protesting about working conditions might be protected, while complaining about a boss might not be. If an employer’s social networking policies are broad and vague, that works against the employer during Section 7 considerations done by courts.

An employer may be violating federal law if they access Facebook posts of an employee, when the employee intended the posts to remain private by adjusting the privacy settings to limit access only to the employee’s Facebook friends, the employer is not a Facebook friend of the employee, and they access the posts without authorization, or intentionally exceeds authorization. In Ehling v. Monmouth-Ocean Hosp. Serv. Corp., 961 F. Supp.2d 659 (D. N.J. 2013), a co-worker of a registered nurse took screenshots of the nurse’s Facebook wall posts, and sent them to a hospital manager. The court ruled that Facebook wall posts are electronic communications, transmitted by an electronic communication service, placed in electronic storage, and can be deemed private if the Facebook user set her privacy settings to limit access to information on the user’s Facebook profile. However, because the co-worker who provided the screenshots to the manager was a Facebook friend of the nurse, an exception to the Stored Communications Act applied, meaning the hospital for which the manager worked was not liable for any wrongdoing under the Act.

For more information on this rapidly growing area of the law, contact an employment lawyer in your area.


Don't I have a First Amendment Right to say what I want on my social media accounts?

Generally, you do not have that right in the workplace. Only government employees have free speech protections and those are very limited. As a private employee, you can be fired for your speech in the workplace or outside of it.

For government employees, ‘Liking’ a page may be protected speech under the First Amendment. In one recent case, a federal appeals court decided that a government employee who worked for a sheriff, and who clicked on ‘Like’ on a Facebook Page showing his support for a different candidate for sheriff, was speaking as a private citizen about a matter of public concern, did not disrupt the work of others in the office, and his interest in showing support for the candidate outweighed the current sheriff’s interest in maintaining effective and efficient public services. The court therefore viewed the ‘Liking’ of a page on Facebook as speech that can be entitled to First Amendment protections for public employees.

For more information on the first amendment at work see our pages on Retaliation for Political Activity and Public Employees and First Amendment Rights.


Can my employer force me to promote their products or services on my personal social media accounts?

Possibly, but your employer runs into the risk of violating certain Federal Trade Commission (FTC) rules and regulations on advertising. Comments made to Facebook or Twitter by an employee could be viewed as advertisements or endorsements subject to FTC regulation. Additionally, the comments might be considered as unfair and deceptive acts in commerce.

Generally, it is okay to ask employees to use their personal accounts to promote the business, but the question of whether it can be required has not been addressed by legislatures. Illinois amended its Right to Privacy in the Workplace Act in 2017 to prohibit employers from coercing employees to interact with employers’ accounts.


Can my employer monitor my Instant Messaging?

Yes. Employers also have the technology to read and monitor your instant-message conversations on such services as AOL Instant Messenger (R), Windows Live Messenger (TM) etc. Signs show that more and more employers are using this technology.


What if I deleted a document or e-mail from my computer, is it safe from being monitored?

No. Information that you have deleted from your computer is often available for your employers to monitor. Even though they appear erased, documents and e-mails are often permanently backed up on the office’s main computer system.

Even worse, deleting personal documents from your work computer may violate the law, depending on the manner and context in which the files were deleted. One recent case held that an employee who used a program designed to clean off the hard drive and permanently erase documents (a “secure delete” program) before returning a computer to his employer violated federal hacking laws designed to prevent damage to networked computers. Another held that a worker erasing documents from a company-owned computer after filing a lawsuit against his employer was in essence tampering with important evidence in the case.

Before permanently deleting any documents on your work computer, check with an employment lawyer in your area first, especially if you have been terminated and/or contemplate filing a lawsuit against your employer.


I feel that my employer's computer usage policy has violated my privacy rights or might be discriminatory. What can I do?

While employers have considerable latitude in monitoring computer and Internet usage, if you feel that your privacy rights have been violated by your employer or believe the enforcement of your employer’s policy is discriminatory, contact your state department of labor, or a private attorney.


If a lawsuit has been filed, what should I do with my social media?

In this digital age, lawyers will investigate or gather evidence anywhere, including your social media. As a result, you should be cognizant of your social media use. Tweets, posts, e-mails, pictures, and videos may be used against you. Exercise caution by:

  • Limiting your privacy settings;
  • Not accepting friend requests from people you do not know;
  • Limiting your electronic communications to people you know and can verify.
  • If a case has been filed, let your attorney know of things on your social media accounts that may hurt you, but get your attorney’s advice about whether to delete anything, as there may be restrictions imposed by the Court once a case is filed.

Social Media in the Workplace- State Laws


Social Media in the Workplace- State Laws?

In the past few years, more than twenty states have enacted legislation regarding employer’s access to employee’s and applicant’s usernames and passwords.The laws vary from state to state, and do not provide the same level of protection in each state. Other states are considering legislation; you can track these bills by visiting the National Conference of State Legislature’s website. Read below for more information on this rapidly growing area of the law.


Arkansas

In Arkansas the law prohibits an employer from requiring, suggesting, or requesting an employee to disclose his or her username and password to the employer. The employer is also prohibited from taking action to discharge the employee for exercising this right of refusal.


California

In California the law prohibits employers from requiring or requesting an employee or applicant’s username or password for the purpose of accessing personal social media.


Colorado

An employer in Colorado may not suggest, request, or require that an employee or applicant disclose their username, or password for the purpose of accessing personal social media accounts. An employer cannot compel an employee to add anyone, including the employer or an agent, to their social media account.


Connecticut

In Connecticut no employer shall request or require that an employee disclose their username and password for their social media accounts, for the purpose of accessing a personal online account. The employer is also prohibited from requiring that an employee add the employer on their private account.


Delaware

No employer in Delaware shall require or request an employee to disclose their username or password for the purpose of enabling the employer to access personal social media. The employer is also prohibited from requesting the employee to add them to their social media accounts.


Illinois

It is unlawful in Illinois for an employer to request the username or password of a social media account in order to gain access to the employee’s personal online account. The employer is also prohibited from requiring the employee to invite the employer to join their social media account.


Louisiana

n Louisiana employers are prohibited from requesting or requiring an employee to disclose their username or password that allows access to the employee’s personal online account.


Maryland

Maryland law prohibits employers from requesting or requiring an employee or applicant to disclose any username or password to access their social media accounts.


Michigan

An employer in Michigan shall not request an employee to disclose information that allows access to the employee’s personal online account.


Montana

An employer in Montana may not require or request an employee to disclose a username or password for the purpose of allowing the employer to gain access to the employee’s personal social media account.


Nebraska

No Nebraska employer shall require or request that an employee provide or disclose any username or password in order to gain access to the employee’s personal social media account.


Nevada

No Nebraska employer shall require or request that an employee provide or disclose any username or password in order to gain access to the employee’s personal social media account.


New Hampshire

No employer in New Hampshire shall request or require that an employee or applicant disclose login information for accessing any personal account or service.


New Jersey

In New Jersey no employer shall require or request an employee to provide their username or password to provide the employer access to their social media accounts.


New Mexico

It is unlawful in New Mexico for an employer to request or require a prospective employee to disclose their login information to the employer for the purpose of gaining access to the prospective employee’s account. The law is silent on current employees.


Oklahoma

In Oklahoma no employer shall require or request an employee or prospective employee to disclose a username or password for accessing a personal social media account. This includes a prohibition on requiring the employee to add the employer to their social media accounts for the purpose of allowing the employer to observe the contents of such accounts.


Oregon

It is unlawful in Oregon for an employer to require or request an employee or applicant to disclose the username or password of an online social media account. The employer is also prohibited from requiring an employee to authorize the employer to advertise on the personal social media account of the employee.


Rhode Island

In Rhode Island no employer shall require an employee to disclose their username or password for means of accessing a personal social media account.


Tennessee

An employer in Tennessee shall not request or require an employee or an applicant to disclose a password that allows access to the employee’s personal social media account.


Utah

In Utah an employer is prohibited from requesting an employee to disclose a username or password that allows access to the employee’s personal social media account.


Vermont

An employer in Vermont shall not require an employee to disclose their username or password for the purpose of accessing the employee’s social media account.


Virginia

In Virginia an employer shall not require an employee to disclose their username or password for the purpose of accessing the employee’s social media account.


Washington

An employer in Washington state may not request or require an employee to disclose login information to the employee’s personal social media account.


West Virginia

In West Virginia an employer shall not request or require an employee or applicant to disclose a username or password that allows access to the employee’s personal social media account.


Wisconsin

An employer in Wisconsin may not require or request an employee or applicant to disclose access information for the personal social media account of the employee.

Marijuana and the Workplace


I am a federal employee in a state where marijuana is legal. Can I be fired if I test positive for marijuana on a drug test?

Yes, marijuana currently remains classified as a Schedule I substance under the Controlled Substances Act. This means that the growing, distribution, use, manufacture, and possession of marijuana remain illegal under federal law. Executive Order 12564, Drug-Free Federal workplace, mandates that Federal employees are required to refrain from the use of illegal drugs. Therefore, any marijuana use or handling is illegal for federal employees.


Can the Federal government interfere with marijuana state laws?

Under President Obama, the Justice Department issued the “Cole Memo” in 2013. The Cole Memo indicated that the federal government would focus its efforts on preventing distribution to minors, preventing criminal enterprises like drug cartels and gangs, preventing the movement of marijuana into states that had not legalized its use, and preventing its use on federal property. Then, Congress enacted a law prohibiting the Justice Department from spending funds to prosecute marijuana users or providers who are acting lawfully according to state law.

However, In January 2018, U.S. Attorney General Jeff Sessions stated that “marijuana is a dangerous drug and that marijuana activity is a serious crime.” He then instructed federal prosecutors to “follow the well-established principles that govern all federal prosecutions” to decide which marijuana activities to prosecute. It remains unclear what impact this will in states where marijuana use is permitted.


Can my employer choose to accomodate a medical marijuana user, even if they are not required to under state law?

Yes, an employer may choose to accommodate a medical marijuana user however the employer chooses to do so, so long as the employer is not violating any laws.

To find out how these marijuana laws affect the workplace of a particular state in regarding workplace accommodations, scroll down to the information for your state.


Can my employer punish me from my off-duty use marijuana (recreational or medicinal) that is allowed under state law?

Potentially, employee’s working in different states must look to the different laws, regulations, and court interpretations. Marijuana legalization is a rapidly evolving area that is highly dependent on a particular statute’s language and court interpretations – as well as the enforcement position of the federal government.

To find out whether your employer can punish you for your off-duty use of marijuana that is permitted under state law, scroll down to the specific information about your state.


If I have a valid medical marijuana card, and I need to use the marijuana while on the job to relieve pain, can I get in trouble with my employer?

Yes, no state law forces employers to tolerate on-the-job use.


If the state I live in has legalized marijuana, can I still be drug tested and fired for using it?

Employee’s working in different states must look to the different laws, regulations, and court interpretations. Marijuana legalization is a rapidly evolving area that is highly dependent on a particular statute’s language and court interpretations – as well as the enforcement position of the federal government.

As of right now, 29 states and the District of Columbia have enacted laws permitting the use of medical marijuana. Nine states have also legalized the recreational use of marijuana. To find out how these marijuana laws affect the workplace of a particular state in regards workplace issues such as drug-testing and accommodations, scroll down to the information for your state.


Alaska

Under Alaska law, there is no requirement for an employer to accommodate any use of medical marijuana or recreational marijuana. Employers can enforce any policies restricting the use of marijuana by employees including drug testing.


Arizona

Under Arizona law, unless an employer would lose monetary or licensing related benefits under federal law or regulations, no employer may discriminate against an employee or otherwise penalize a person based upon a person’s status as a cardholder or a registered qualifying medical marijuana patient’s positive drug test for marijuana. However, an employer may discipline an employee if the employee used, possessed, or was impaired by marijuana on the premises of the place of the employer or during hours of employment.


Arkansas

Under Arkansas law, an employer may not discriminate against an applicant or employee based upon the applicants or employee’s past or present status as a qualifying medical marijuana patient. However, an employer is allowed to establish and implement substance abuse or a drug-free policy or drug testing program that complies with state or federal law. The employer is allowed to take action regarding an applicant or employee under the policy. An employer also may discipline an employee who the employer in good faith believes possessed, smoked, or ingested or otherwise engaged in the use of marijuana while on the premises of the place of employment or during the house of employment. However, a positive test result for marijuana cannot provide the sole basis for the employer’s good faith belief or act as the reason to exclude the qualifying patient from being employed.


California

Under California law, employers are not required to accommodate any medical use of marijuana on the property or premises of any place of employment or during the hours of employment. Similarly, the law allows employers to maintain a drug-free workplace and does not require an employer to accommodate the outside use of marijuana by employees and applicants. Employers are allowed to drug-test applicants for marijuana so long as the employer tests all applicants for the position and does not single out a specific applicant based on race or disability.


Colorado

Under Colorado law, an employer is not required to permit or accommodate the use, consumption, or possession of marijuana in the workplace. The law also allows employers to have policies restricting the use of marijuana by employees, which includes the employer’s ability to drug test employees and applicants for marijuana use and discipline them.


Connecticut

Under Connecticut law, no employer may refuse to hire a person or may fire, penalize or threaten an employee solely based on the applicant or employee’s status as a qualifying medical marijuana patient or for testing positive for marijuana on a drug test. However, the law does not restrict an employer’s ability to prohibit the use of marijuana during work hours or restrict the employer’s ability to discipline an employee for being under the influence during work hours.


Delaware

Under Delaware law, an employer is not required to allow an employee to work while under the influence of marijuana. Unless failure to do so would cause the employer to lose monetary or licensing-related benefits under federal law, an employer may not discriminate against a person who tests positive for marijuana  in hiring, termination or any term or condition of employment or otherwise penalize a person, based on a person’s status as a cardholder, or a patient’s positive drug test for marijuana, unless the patient used the marijuana or was impaired by marijuana on the premises of the place of employment or during the hours of employment.  However, nothing in the law explicitly prevents employers from continuing to impose existing drug-free workplace policies as they apply to marijuana, nor does it prevent employers from implementing a drug test program in the interest of maintaining employee performance, safety, and productivity.


District of Columbia

Under D.C. law, employers hiring in D.C. may not test applicants for marijuana usage until after the applicant receives a conditional offer of employment for the position. However, once a conditional offer of employment is made, the applicant can be tested for marijuana, and denied employment if the test is positive. The law does not require any employer to permit or accommodate the use, consumption of marijuana in the workplace or at any time during employment.


Florida

Under Florida law, the law allows employers to continue to establish or enforce a drug-free workplace program or policy, therefore allowing employers to deny applicants employment and discipline employees who test positive for marijuana on a drug test.


Hawaii

Under Hawaii law, drug testing for marijuana is authorized if the applicant or employee received notice in writing of substances to be tested for and has the opportunity to disclose current prescriptions and non-prescription medications. However, Hawaii law protects and employer’s right to a zero-tolerance policy.


Illinois

Under Illinois law, no employer may penalize a person solely for his or her status as a registered qualifying patient unless failing to do so would put the employer in violation of federal law or failing to do so would allow employers to lose monetary or licensing-related benefits under federal law. An employer is allowed to adopt reasonable regulations concerning the consumption and storage of qualifying patients related to medical marijuana, enforce policies concerning drug testing, zero tolerance, or a drug-free workplace so long as the policy is applied in a nondiscriminatory manner. If an employer decides to discipline a qualifying medical marijuana patient based on impairment during work hours or being impaired on the premises, the employer must give the employee a reasonable opportunity to contest the basis of the determination.


Maine

Under Maine law, an employer may not refuse to employ or penalize someone solely for that person’s status as a qualifying medical marijuana patient unless failing to do would violate federal law or cause the employer to lose federal contract or funding. An employer is not required to accommodate the use of marijuana in any workplace or accommodate any employee working while under the influence. However, an employer may not drug test a person 21 years of age or older for marijuana before hiring, and an employer may not or penalize an employee solely for that person’s consumption of marijuana outside of the employer’s premises.


Maryland

Under Maryland law, there is currently no effect on existing drug-free workplace policies. In the case of employees who are qualified medical marijuana patients, those employees will still be expected to adhere to company drug test programs and not show up for work while impaired by marijuana use.


Massachusetts

Under Massachusetts law, an employer is allowed to enact and enforce workplace policies restricting the consumption of marijuana by employees. However, a Massachusetts court rules that employers cannot fire employees using medical marijuana solely for a positive drug test.


Michigan

Under Michigan law, an employer is not required to accommodate the ingestion of marijuana in any workplace or any employee working while under the influence of marijuana. Additionally, employees can reasonably be expected to adhere to company rules and regulations including drug testing programs in the interests of maintaining employee safety, performance, and productivity in the workplace.


Minnesota

Under Minnesota law, unless the failure to do so would violate federal law, or regulations or cause an employer to lose monetary or licensing-related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination, or penalize a person, based upon the person’s status as a patient enrolled in the registry program under medical marijuana law or a patient’s positive drug test for marijuana. However, an employer may discipline an employee or discriminate against an applicant who was impaired by medical marijuana on the premises of the place of employment or during the hours of employment. An employee who is required to undergo employer drug testing may present verification of enrollment in the patient registry as part of the employee’s explanation for a positive test result.


Montana

Under Montana law, employers are not required to provide accommodations for medical marijuana users. Existing workplace policies regarding drug use and drug testing can remain in place, and all employees are expected to adhere to the workplace policies. An employee who tests positive may be required by his employer to undergo treatment as a condition of keeping employment.


Nevada

Under Nevada law, an employer is not required to allow the medical use of marijuana in the workplace. An employer is not required to modify the job or working conditions of a person who engaged in the medical use of marijuana that is based on reasonable business purposes of the employer. However, the employer must attempt to make reasonable accommodation for the medical needs of an employee who engages in the medical use of marijuana if the employee holds a valid registry identification card, if the reasonable accommodation would not pose a threat of harm or danger to persons or property or put undue hardship on the employer, or prohibit the employee from fulfilling any and all of his or her job responsibilities. The medical marijuana law does not prohibit law enforcement agencies from adopting policies and procedures that preclude an employee from engaging in the medical use of marijuana. The law does not prohibit employers from maintaining, enacting, and enforcing workplace policies prohibiting actions and conduct related to recreational marijuana.


New Hampshire

Under New Hampshire law, an employer is allowed to discipline an employee for ingesting marijuana in the workplace or working while under the influence. Additionally, drug-testing by employers is not restricted so long as it is done fairly and does not discriminate against a certain class of people.


New Jersey

Under New Jersey law, an employer is not required to accommodate the medical use of marijuana in any workplace. An employer may or may not require pre-employment drug testing and random drug testing.


New Mexico

Under New Mexico law, there is currently nothing that prohibits or regulates drug testing laws for prospective or current employees by their employer. Therefore, employers are allowed to apply for drug testing programs.


New York

Under New York law, being a certified medical marijuana patent shall deem the person to have a “disability” under the New York Human Rights Law and the New York Civil Rights Law. This prevents an employer from discriminating against employees and applicants who test positive for marijuana on a drug test. However, this does not prevent employers from enforcing a policy prohibiting an employee from performing his or her employment duties while impaired by medical marijuana.


North Dakota

Under North Dakota law, the law does not prohibit an employer from disciplining an employee for possessing or consuming marijuana in the workplace or for working while under the influence. Additionally, private employers have the option of requiring drug testing for applicants and employees so long as the employer covers the cost of the drug test. Random drug testing is allowed following an employee’s injury or accident, if there is a mandatory policy of testing in place, or there is a reasonable reason to think that the accident or incident was due to drug-caused impairment.


Ohio

Under Ohio law, an employer is not required to accommodate an employee’s use or possession of medical marijuana. An employer is allowed to refuse to hire, discharge, discipline, or otherwise take adverse employment action against a person concerning hire, tenure, terms, conditions or privileges of employment because of that person’s use, possession, or distribution of medical marijuana. An employer may establish and enforce a drug testing policy, a drug-free workplace policy, or a zero-tolerance drug policy.


Oregon

Under Oregon law, an employer is not required to accommodate the medical use of marijuana in the workplace. Additionally, an employer still has the option to drug test applicants and employees.


Pennsylvania

Under Pennsylvania law, a medical marijuana patient may not perform any employment duties at heights or in confined spaces, including mining, while under the influence. A medical marijuana patient may be prohibited by an employer from performing any task which the employer deems life-threatening, to either the employee or any of the employees of the employer, while under the influence of medical marijuana. A medical marijuana patient also may be prohibited by an employer from performing any duty which could result in a public health or safety risk while under the influence of medical marijuana. An employer is not required to make any accommodation of the use of medical marijuana on the property or premises of any place of employment. Additionally, drug testing is not restricted, unless an employee establishes discrimination, defamation, or invasion of privacy.


Rhode Island

Under Rhode Island law, no employer may refuse to employ or penalize a person solely for his or her status as a cardholder, even if the individual admittedly would not pass the employer’s pre-employment drug test required of all applicants.


Vermont

Under Vermont law, an employer is not allowed to conduct random drug test except when required by federal law.  However, employers are allowed to drug test applicants after a conditional offer of employment has been made or if there is a reasonable suspicion that the employee was impaired on the premises of the workplace or during work hours.


Washington

Under Washington law, employers may establish drug-free work policies. Nothing in the law requires accommodation for the medical use of marijuana if an employer has a drug-free workplace.


West Virginia

Under West Virginia law, the law prohibits employers from discharging, threatening, refusing to hire or otherwise discriminating again an employee regarding an employee’s compensations, terms, or conditions solely because of the employee’s status as a qualified medical marijuana patient. However, employers are not required to make an accommodation for the use of medical marijuana on the property or premises of any place of employment. Additionally, employers are allowed to discipline an employee for being under the influence of medical marijuana in the workplace or for the working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position. An employer is not required to commit any act that would put the employer in violation of federal law. An employer may prohibit a medical marijuana patient from performing any task which the employer deems life-threatening or a public health or safety risk to either the employee or another employee while under the influence of medical marijuana.

Workplace Searches


What would my employer want to search me at work? Isn't that a violation of my privacy?

In a perfect workplace, there would never be a need for employers to search their employees. However, employers have an interest in keeping their workplaces free from drugs, illegal weapons, and alcohol, and in eliminating any employee theft which may be occurring. Still, many employees believe that the law should protect individuals and their personal belongings from an employer’s intrusive searches.

The courts have struggled to balance these competing concerns in a way that recognizes the legitimacy of both sides’ interests. Cases involving the violation of privacy rights through unreasonable searches are often extremely factual and tend to be decided on a case-by-case basis.


Is it legal for my employer to search me or search my belongings?

The law generally states that employers must have a reasonable basis for a search, and the search must be confined to non-personal items. Searches of personal items, like handbags, generally cannot be searched unless the employer has a valid reason to do so.

The answer to this question also depends on what type of work is involved. Public (government) employees have a greater protection of privacy protections under provided by the United States Constitution. While public employees have the protection of the Constitution, at At least nine states (Alaska, California, Florida, Hawaii, Illinois, Louisiana, Montana, South Carolina, and Washington) have provided those same rights regarding privacy to private employees as well. However, iIn many states there are no laws that explicitly say what employers are and are not allowed to do when performing a workplace search.

Read the questions below to learn more about when an employer can and cannot conduct a search.


How does the Constitution protect public employees?

The Fourth Amendment of the United States Constitution, which guarantees that “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated,” has been extended by the U.S. Supreme Court to protect public employees against searches and seizures of themselves and/or their property. In order for you to be protected by the Constitution, you must demonstrate that the search the employer conducted was an invasion of your own reasonable expectation of privacy.

Your employer is not required to have a warrant or probable cause to conduct a search Probable cause means a reasonable ground to suspect that a person has committed or is committing a crime or that a place contains specific items connected with a crime for the search, which is required under the Fourth Amendment to obtain a search warrant. Your employer need only have a justifiable reason related to the nature of employment, such as an interest in promoting efficient operation of the workplace.


Under what circumstances can a public employer search an employee?

A reasonable expectation of privacy in the governmental setting usually depends on the office practices and procedures. The U.S. Supreme Court has acknowledged that public employees have a heightened expectation of privacy regarding such items as purses, briefcases, and closed luggage brought to work.

Government employers can weaken your expectations of privacy by informing you that you do not have an expectation of privacy, or that your desks, computers, and lockers may be searched. However, while legitimate workplace policies or regulations can reduce your expectations of privacy, the government may not condition your job upon your willingness to comply with unconstitutional conditions.

Here are some of the factors that you as a public employee must consider in order to determine whether or not your governmental employer has violated your right to privacy:

  • Is there credible evidence of misconduct? For example, a tip by a credible coworker that an employee has engaged in misconduct may be enough for an employer to initiate a search.
  • Is the scope of the search limited? For example, the employer’s search should be limited to locations where the item being sought is likely to be stored. One court upheld a search for pornographic pictures in an employee’s desk, storage unit, and file cabinet, since those places were the most likely place an employee would store the photos.
  • Is the search of an accessible area in which the employee has a diminished expectation of privacy? For example, is the employer searching an area that is exclusively for the employee’s own use, or do other employees have access to the area? One court upheld a search of a fire chief’s office where official records and maintenance equipment were kept, holding that the chief’s privacy expectations were diminished when others had the right to access items stored in his office.
  • Is the search for a limited purpose? For example, an employee who was on leave and asked to clear out his desk was determined not to have any expectation of privacy when a supervisor searched the desk for any remaining work-related items, and found a computer disk with incriminating information.


Under what circumstances can a private employer search an employee?

In order to determine whether or not your employer in the private sector has violated your right to privacy, there are several factors to consider:

  • What type of employment is involved? For example, an employer is permitted to search your clothing or possessions to determine whether there has been theft of company property, so in the retail environment, it is customary to check an employee’s belongings to prevent theft of merchandise. It is less customary to do so in an office setting where an employee’s access to easily concealed and/or expensive items is limited.
  • Is there a legitimate business reason for the search? For example, an employer has an interest in recovering an item that it believes to be stolen, or preventing workplace violence by ensuring that employees are not bringing weapons into the workplace. However, courts are more likely to find that an employer who engages in random searches without any reasonable suspicion that an employee has violated the law or any workplace policies is violating its employees’ privacy.
  • What is being searched? For example, when employers have searched employees’ locked file cabinets, desks, or personal papers, courts have found these items may be searched so long as there was authority to search. However, in a case where the employees were expected to pay for locks to guard their lockers, the court found that the employer had violated the employee’s right to privacy by searching a locked locker. In that instance, the employee had a reasonable expectation of privacy.
  • For what is the employer searching? For example, if the missing item was a computer, the employer might be justified in searching employee lockers and cars, but not employees’ purses, pockets, or clothing, since the item sought is too large to be concealed on the employee’s body or in the employee’s personal effects.


Even if an employee has notice of the search, is it still legal? What happens to the employee's right to privacy?

Employers now typically safeguard their intrusive actions by announcing clear policies regarding random, unannounced searches. Although your right to privacy may be diminished when your employer gives you notice of a policy regarding searches, notice does not extinguish the right. Many courts find searches to be illegal, even with notice, when an employer has engaged in socially unacceptable conduct by demonstrating a complete disregard for the search’s effect on an employee. This typically occurs with strip searches, as workers have a stronger privacy interest in their own bodies.

While private employers can compel, as a condition of employment, your consent or acquiescence to employer searches, a governmental employer could never condition your employment on your willingness to consent to an unconstitutional search.


If I think I have grounds to sue my employer for a search that violated my privacy, what do I do?

In this situation, it is important to consult with an attorney to determine what rights you may have. The violation of privacy rights through an unreasonable search is often extremely factual and tends to be decided on a case-by-case basis. Depending on the issue involved, you may need to quickly make a strategic decision whether to challenge the process in court. There may be fast-approaching deadlines, which will affect your legal strategy, so it is important to consult with an attorney immediately, to preserve the widest range of options for yourself.

If you are a member of a union and/or a public employee, you may also want to speak with a shop steward, union official, or other employee representative to discuss whether you may have grounds for a grievance or lawsuit.

Surveillance at Work


Can my employer videotape me?

In order for an employer to legally videotape you in the workplace, there must be a legitimate business reason for the recording. Such purposes can include security reasons, time and motion studies, or other investigative processes. Camera recordings in areas where employees have a reasonable expectation of privacy, like locker rooms or bathrooms, is almost always prohibited.

If the recording is done by visible cameras, federal law seems to allow videotaping of individuals in the workplace, even without their consent or knowledge, as long as it is not done to commit a crime.

Where the recording is done by hidden cameras, courts place a higher burden of proof for the employer to demonstrate that the surveillance is for a legitimate business reason. This means that employers cannot simply say the recording is for security reasons, and must provide a reason beyond that in order to justify their use of hidden cameras. In places where employees are unaware of video surveillance, their reasonable expectation of privacy may be heightened. As a result, employers are generally well-advised to provide notice of hidden cameras in the workplace.

Certain states have placed stricter restrictions on videotaping in the workplace. Connecticut (Conn. Gen. Stat. §31-48D) and Delaware (Del. Code § 19-7-705) require employers engaging in electronic monitoring by any means other than direct observation to give prior written notice to all employees who may be affected. The California Supreme Court (Hernandez v. Hillsides, Inc., 211 P.3d 1063 (Cal. 2009) has also advised employers to disclose the existence of workplace video surveillance in writing to employees, and require employees to sign a receipt of notice.


Can an employee record another employee?

In California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington, you need the consent of all parties participating in the conversation in order to record it. These twelve states are known as “two party consent states” so employees cannot secretly record conversations with other employees without their consent.

In states without a two-party consent requirement, as long as one party gives consent, which can include the person recording the conversation as long as they actively participate, then the conversation can be legally recorded. If no party knows about the recording, then the situation may constitute wiretapping, which is subject to a different set of laws.


Can my employer audiotape me?

In order for an employer to legally audiotape you, they must have some legitimate business purpose – but such a purpose is not always hard to find.

Federal law seems to allow for the audiotaping of any individual, even without his or her knowledge or consent, as long as it is not done to commit a crime. Some states have placed more restrictions on audiotaping, and may require that everyone involved in the conversation be aware of, and consent to, the taping. Some states, like Connecticut, have implemented stricter laws for employers, fining them for overuse of audiotape recorders . Federal labor laws also limit an employer’s ability to audiotape employees by prohibiting the secret monitoring of union meetings, including audiotaping.


Can my employer monitor my telephone calls?

Under federal law , employers are only allowed to monitor business telephone conversations; if they realize that the call is personal, they must hang up. However, if you have been explicitly told not to conduct personal conversations on certain business phones, you run the risk of that conversation being monitored by your employer. Employers may also monitor your personal phone conversations if you have given them your consent. Some state laws provide further safeguards on telephone conversations by requiring that not only the employee, but the person on the other end of the phone line know about and/or consent to the call being monitored.


Can my employer listen to messages on my voicemail?

While it appears that federal law may prohibit employers from listening to voice messages , it is unclear if it does in every case, especially for messages that an employee has listened to, but not yet deleted. Recent court cases have held that the employer may monitor voice messages. The best thing to do is to discourage anyone you know from leaving inappropriate messages on your employer’s voicemail system, to avoid embarrassment or possible discipline.

The best thing to do is to discourage anyone you know from leaving inappropriate messages on your employer’s voicemail system, to avoid embarrassment or possible discipline.


Can my employer monitor my voice messages and emails if I have deleted them?

Yes. Voice mail and e-mail systems often retain deleted messages by permanently “backing them up” in your employer’s computer system, and your employer may access these backups.

Again, the best thing to do is to discourage anyone you know from leaving inappropriate messages on your employer’s voicemail system, to avoid embarrassment or possible discipline.


Can my employer read my postal mail?

For the most part, this depends on your employer’s policy. At most workplaces there is a designated person who opens and sorts the postal mail; and in most cases such a person may accidentally, or even purposely, read any of your mail without any legal consequences.

Mail that is marked “Personal” or “Confidential,” however, may not be opened by other people besides yourself, unless there is a compelling (very important) business reason to open it.


Can my employer monitor my computer and email activities?

Yes. Your employer can monitor what is on your computer screen, your Internet activity, how long your computer has been idle, what you write in e-mails and even your online chat conversations. See our Computer Privacy page for more information.


Can an employer track my movements, speed, and/or break-time using GPS devices?

Yes. Many employers have been using devices such as GPS in company cars in order to track how fast employees are driving, how long a break they are taking (monitoring how long the vehicle has not moved), and where employees are located. GPS has also been used to track the movements and whereabouts of employees on or off the job, by placing tracking chips in cell phones.

In one case, the attachment of a GPS device to an employee’s personal vehicle as part of an employer’s investigation amounted to a workplace search that fell within the workplace exception to the warrant requirement, and thus did not require a warrant. However, the search was considered unreasonable because the scope exceeded work hours. See Matter of Cunningham v. New York State Dept. of Labor, 21 N.Y.3d 315 (N.Y. 2013).

While some unions have fought to protect workers against this type of monitoring, at this time, little law exists to protect workers against it.


What other mechanisms are employers using to monitor employees, and is my employer allowed to use them?

Employers have been known to use security monitoring devices including finger prints, retinal scans, and even implanting computer chips in employees’ arms. In most cases, employers are allowed to monitor you however they wish, especially if you choose to work in a high-security occupation where high-tech security measures are necessary. Requiring an employee to place a computer chip in his/her arm may be going too far; but this technique is a recent development, and has not made its way to the courts yet.

A few states (Missouri, North Dakota, and Wisconsin) have passed laws which prohibit employers from requiring employees have a microchip containing an RFID device planted into their body.


I feel that my employer has violated my privacy rights. What can I do?

After reading the above information, you might conclude that employees have limited privacy rights in the workplace. However, if you still feel that your privacy rights have been violated by your employer, contact your state department of labor, or an employment attorney licensed in your state.


If I wear a headset at work, are conversations I have with my coworkers subject to monitoring by my employer?

Yes. Employers may monitor what is transmitted through the headset even though the employee is not speaking to a customer or client. Some headsets may be muted in order to prevent transmission of conversations employees do not want monitored. Otherwise, employees should take the same care they would exercise in speaking to customers or clients while speaking with other employees.


If I use my personal phone for work, can my employer monitor it?

The answer is not entirely clear, as the issue is relatively recent because for a long time people had no choice but to use the phone their employer provided. Many employers have policies regarding personal phone surveillance, including policies that allow employers to install monitoring software onto phones.

Off-Duty Conduct


Can my employer fire me for what I do on my own time, outside of work?

The answer to this seemingly simple question is: it depends. It depends on the activity involved, and whether that activity has any legal protection under your state’s laws. Generally speaking, if there is no law specifically protecting you from being fired for the activity under consideration, and if you are not a union or governmental employee with special protection against being fired without a reason, then you are employed at will.

Employment-at-will means that both the employer and the employee can end the employment relationship at any time without notice or reason. This means the employer has the right to terminate your employment at any time, for any reason, for no reason at all, or for a bad reason, so long as the reason is not illegal–even if your performance has been outstanding. For more information, see our site’s at-will employment page.

So if the reason for your termination is not illegal under the laws of your state, then yes, your employer can fire you for what you do on your own time, outside of work.

Some states (New York, California, Colorado, North Dakota) have passed laws which prohibit discrimination against an employee for participation in legal activities outside work hours. As long as the conduct does not present a conflict with the employer’s business, the activity should be allowed. However, whether blogging falls under the list of protected activities has yielded varying results in case law.


My company has announced that it is going to fire anyone who is a smoker, after strictly enforcing an anti-smoking policy at work for several years. Can I be fired for smoking on the evenings and weekends, even if I have never violated their policy at work?

Maybe. A new trend is increasingly taking hold, where companies looking to reduce their health care costs have established not just a “no smoking” policy, but a “no smokers” policy. These companies not only refuse to hire smokers, but some are even taking the drastic step of terminating current employees who smoke. Whether your company can do this depends on where you live, as some states have laws preventing employers from discriminating against smokers, but other states provide no such protection and leave employers free to fire employees who smoke.

Most of the companies implementing anti-smoking policies are giving their employees time to quit smoking, and are supporting their efforts by sponsoring programs and paying for aids to quit smoking, such as medication, nicotine gum, and patches. If you value your job and truly want to quit smoking, you may want to take advantage of these additional incentives, or you may want to look for a new job without such restrictive policies. For more information on your rights as a smoker visit our page on Smoking and the Workplace.


I have a blog, that I write on my own time. I occasionally mention things that happen to me at work, but don't identify who my employer is. Can I get in trouble for this blog?

Generally, an employer can fire you for having a personal website or blog that it deems inappropriate, with very limited exceptions. Even if you have a non-work related website that you don’t access from your office, employers can fire you if they feel the content on your personal site or blog is offensive to them or to potential clients, or reflects badly on the company.

For more information see the Workplace Fairness page dedicated to Social Networking and Computer Privacy. Additional information can also be found at the Electronic Frontier Foundation’sBlogger’s FAQ on Labor Law.


Is there anything I can write about in my blog that I cannot be fired for?

In some states, if you write about political matters, you may have protection under laws that make it illegal to discriminate against you for engaging in political activity. A handful of states have laws restricting an employer’s ability to fire you for “lawful conduct outside of work,” which might offer some protection. For more information on these laws, see our site’s page on political activity retaliation.

If you’re whistleblowing–reporting the employer’s unlawful conduct–you may have some protection if you’ve reported it to a government agency first. And if you use your blog to communicate with your coworkers for the purpose of forming a union or otherwise banding together to oppose bad working conditions, you may be protected by labor laws which allow you to engage in concerted activity for “mutual aid and protection.” See our site’s retaliation for union activity page for more information.

The protections listed above are fairly limited, so if you are concerned that your employer will retaliate against you for what you’re saying, or you would just prefer to keep it private, the safest bet is to blog anonymously or to restrict access to your blog.


I have a second job on weekends, which never interferes with my work for my full-time employer. My employer's personnel handbook has a no-moonlighting policy. Can my employer restrict me from working for someone else when it doesn't interfere with my work?

This issue can sometimes fall into a gray area, but the answer is probably yes, your employer can restrict you from moonlighting, whether through its personnel policy or by requiring that you sign a non-compete agreement that limits the type of work you can do for anyone other than your current employer.

Most states do not have laws protecting your right to work for another employer, and in the absence of any legal protection, you are most likely employed at will, meaning you can be terminated at any time for any reason. Even if you were not employed at will, violating your employer’s policy would be sufficient “just cause” grounds for termination or discipline. (However, if you live in a state with a law restricting an employer’s ability to fire you for “lawful conduct outside of work,” that law might offer some protection. For more information on these laws, see our site’s page on political activity retaliation.)

If it is essential for you to moonlight for financial reasons, or you are gaining experience which might help you advance within your current company, then you may wish to talk to your supervisor or someone in your company’s human resources department to find out the reason behind the company’s policy, and to see whether your employer is willing to make an exception to the policy. If they understand that your primary loyalty is to your full-time job, and respect the reasoning behind your need to moonlight, then you will have resolved this issue in a way that doesn’t risk your full-time employment. If, however, they say no, then you will have to make a decision about whether you can continue in your current employment, which is always easier to make before you are terminated for violating company policy.

If your company does not have a moonlighting policy, then it may not be a problem for you to have a second job, but to be safe, you might want to consult a supervisor or your company’s HR department. Also, you should never conduct any business related to your second job while working for the first employer, which includes phone calls, e-mails, and use of your primary employer’s supplies or business contacts.


My company has a policy which requires employees to report to the company if they're dating co-workers. I recently began dating someone in another department. She doesn't supervise me or work on my team. Do I still have to tell the company that we're dating?

Some companies concerned about sexual harassment have instituted strict “anti-nepotism” or dating policies which seek to prevent workers from dating certain or all coworkers. While generally these policies are designed to prevent you from dating someone in your chain-of-command, be sure that you do not violate your company’s policy, which may be more strict than the most common policies. Some companies now ask that you notify the company before dating a coworker, and may require that you sign a “relationship contract,” indicating that the relationship is voluntary and consensual.

An increasing number of companies are adding these policies, and most of these policies have thus far survived legal challenges. If your company has such a policy, it is probably best to comply with the policy and disclose the relationship, especially if your relationship has reached a point where other coworkers are likely to find out about it. Voluntarily disclosing the information up front will make it easier for you and your company to address any potential problems that could result, such as issues related to one employee’s authority over another, promotion/advancement which could lead to supervision issues, and what happens if you break up.


My company has a no fraternization policy that restricts managers from socializing with non-management employees. Is it legal to have this kind of policy?

You might think that who you hang out with when you’re off the job is not the boss’s business, but the National Labor Relations Board (NLRB) recently upheld a very restrictive anti-fraternization policy, which made it against the rules for a security company’s guards to “fraternize on duty or off duty, date, or become overly friendly with the client’s employees or with co-employees.”

While the policy was ostensibly enacted for safety and security purposes, its chilling effect goes much further. The policy was challenged by the guard’s union, who argued that this kind of provision discouraged workers from exercising their right to organize unions and engage in concerted activity. (For more information, see our site’s retaliation for union activity page.) After all, if you can’t get overly friendly with your fellow employees, or spend time with them away from the workplace, chances are good that you’re not going to feel safe complaining about work to someone you don’t know very well, and certainly aren’t going to take the chance of talking about banding together to join a union.

While the NLRB’s ruling says that “we believe that employees would reasonably understand the rule to prohibit only personal entanglements, rather than activity protected by the Act,” it’s still unclear which “personal entanglements” would violate the company’s policy. If more employers enact similar policies preventing fraternization, it is likely that there will be more lawsuits brought by workers fired for violating them, given the difficulty of defining what kind of relationships violate such policies and the possibility that they inhibit union and other collective activity. If you are subject to a no-fraternization policy, and have questions about what it means, you may want to consult with a local attorney to determine whether the policy appears to violate any laws.


I smoke medical marijuana in a state where it's legal, however, my employer fired me for testing positive for marijuana. Is that legal?

Yes, despite marijuana recently being made legal in some states, an employer can still fire an employee for testing positive. As seen in a recent Colorado case, this applies even to medical marijuana, though Arizona and Delaware currently have laws protecting medical marijuana users. The main justification for employers freedom to terminate employees who test positive for marijuana is that using and possessing the drug is still illegal under federal law, even though it is legal in some states. For more information on marijuana and employment related drug testing visit our Drug Testing page.


I recently came out as gay and when my employer found out I was fired. Is this covered by discrimination laws?

Maybe. The answer differs between states and depending on whether you work for the federal government or a private employer. Workplace Fairness has a Sexual Orientation Discrimination page that more thoroughly covers topics like protection from discrimination, the legal differences between sexual orientation and gender identity discrimination, whether you can take a leave to care for your partner, and more.


A co-worker is sending me harassing emails through his personal account while off-duty. What should I do?

While there are laws protecting you against harassment, whether a company will take action against an employee for off-duty harassment depends on the company policy. For example, if the harassment is creating a hostile work environment, many companies will discipline the offender. For more information on harassment visit our Harassment and Other Workplace Problems section and read about the harassment most closely related to what you are experiencing.


I recently tried to get promoted to a managerial position but I was but I was denied because I would be supervising my husband. So I tried applying to a different company but they wouldn't hire me because my husband works for the competitor. Can they do this?

Federal law is silent on the issue of marital discrimination. While most states have laws that protect against discrimination based on marital status (for example refusing to hire a married person for fear they will request extra time off) these laws are often silent on the issue of employer decisions which prohibit married couples from supervising one another. As a result, many companies have an anti-nepotism policy. However, while anti-nepotism policies may be legal, sex discrimination, sexual orientation discrimination, and violations of employee privacy are not, and that may afford you some protection. For more information visit our Family Responsibilities Discrimination pages.

Dress Codes and Grooming


Can my employer tell me how to dress?

Yes. In general, employers are allowed to regulate their employees’ appearance, as long as they do not end up discriminating against certain employees. It is very common, for example, for an employer to require his/her employees to wear a uniform so that all employees appear uniform.

In today’s work world, more employers are requiring more formal attire. While in the last decade there was a trend for employers to be more laid back, and they allowed such things as “casual Friday,” in the last three to four years, some employers are taking a step back towards requiring a more formal way of dressing. Many employers feel that more formal attire means more productive employees.


My employer is telling me how to dress, but no one else is forced to dress that way, is that legal?

No. An employer generally cannot single you out or discriminate against you. Dress code policies must target all employees, not just you.


My employer has dress codes for women, but not for men, is that legal?

No. Employers cannot single out or discriminate against a particular group of persons. Dress code policies must target all employees.


My boss requires me to wear makeup, and seems to have a much more different dress code for women than for men, is this legal?

While it is not legal to have dress codes only for one sex, but not the other, so far, the law seems to allow different dress codes for women and men, as long as they do not put an unfair burden on one gender more than the other.

For example, Harrah’s Casino implemented a dress code requiring women to wear extensive make-up, stockings, and nail polish, and required them to curl or style their hair every day. Men, however, only had to maintain trimmed hair and nails. A 20-year female employee did not want to wear makeup because it made her feel like a sex object, and she was subsequently fired by Harrah’s for not complying with the dress code. While this dress code seemed to discriminate against women and impose a greater burden on them, the court held that it was legal to fire the employee because she could not prove that Harrah’s requirements were more burdensome for women Jespersen v. Harrah's Operating Co., Inc., 392 F. 3d 1076 (2004). However, employees who can prove that the dress code is an unequal burden between male and female employees may be able to successfully bring a sex discrimination claim.


My boss allows women to wear their hair long, but not men, is that legal?

Yes. Employers are allowed to enforce different dress code standards for women and men. However, they may not impose a greater burden on either gender.


Can a casino, or other employer, make me wear a revealing or sexual uniform?

Usually yes. If looking sexy is part of your place of work’s image, then sexy uniforms can be required. However, there should be a bona fide reason for your employer to require you to wear sexy clothing, and employers are usually not allowed to require sexy uniforms if your workplace has nothing to do with a sexy image. Some unions have successfully fought to prohibit their female members from having to wear sexy uniforms at work, but these are rare cases.

Requiring revealing or sexual uniforms where no legitimate business purpose exists may constitute sexual harassment. An employer may be liable for either sexually harassing employees or encouraging others (like fellow employees or customers) to sexually harass employees. If you feel that your employer’s dress code has led to sexual harassment and violation of your labor rights, please contact your state department of labor or a private attorney.


Is my employer allowed to tell me to maintain a certain weight in order to fit into a certain size uniform?

Yes and no. In cases where there is discrimination between men and women, such as women having to fit into a small weight range and men being able to fit into a large weight range, the courts have ruled that this is not legal. However, it is not illegal to have a requirement to maintain a certain weight as long as it does not end up in discrimination between men and women.

For example, Borgata Casino announced that it will fire members of its “Borgata Babe” waitstaff if they gain weight. Further, the waitstaff is only given 90 days after pregnancy to get back to their pre-pregnancy weight. The only way that women are allowed a larger uniform, is if they have had a breast augmentation. Some of the waitstaff sued Borgata, but the court ruled that the policy is legal because both male and female waitstaff have weight limits and the waitstaff knew what they were agreeing to when they took the job.


Is my employer allowed to deduct the cost of my required uniform from my paycheck?

Possibly. Although an employer may deduct the cost of your uniform from your paycheck, it can be illegal under certain circumstances. The Fair Labor Standards Act makes it illegal for your employer to require you to wear a uniform, and then deduct it from your wages IF it causes your wages to fall below the minimum wage standard. Further, it is also illegal for your employer to make any profit on the uniform by deducting it from your wages.

Some states have passed laws prohibiting employers from being able to deduct the cost of uniforms from wages, but these laws are often narrow and do not provide broad protection. However, there have been successful lawsuits challenging employers’ requirements that retail employees wear the clothing sold by their employers, in order to have the store’s “look.”


Can my employer tell me how to groom?

Yes. Your employer is allowed to tell you how to groom, at the very least to the extent that your employer is simply asking you to be generally clean and presentable on the job.


Is my employer allowed to require me to shave my beard?

Maybe. Requiring an employee to shave his beard can end up in discrimination, because certain races, such as African Americans, have disorders that make it more burdensome to shave. For example, men who have Pseudofollicullitis Barbae, a skin disorder that is specific to African Americans, experience pain when shaving. Several individuals have successfully challenged companies that have required them to shave their beards.

However, if you do not have a skin condition as a result of your race and just prefer to have facial hair for personal and/or appearance reasons, you may not be able to challenge this requirement, as it is not discriminatory as applied to you.


Is my boss allowed to tell me to cover my tattoos and piercings?

Yes. Many employers are worried that piercings or tattoos will offend customers and they are allowed to tell you to cover your “body art”.

In Cloutier v. Costco, an employee who claimed her eyebrow piercing was part of her religious observance as a member of the Church of Body Modification, and objected to Costco’s dress code policy after she was fired for refusing to remove her eyebrow piercing, had her legal claim rejected. The court ruled that the accommodation requested by the employee – to be exempt from the policy – would be an undue hardship on Costco, as it would adversely affect the company’s public image and would detract from the neat, clean and professional image it wishes its employees to portray.

Based on this ruling, it will be very difficult for those who want to bring legal challenges to succeed, especially if the basis for their choice to be pierced is not a religious one.


Can my employer still tell me what to wear if my religion conflicts with my employer's dress code?

If your religion requires you to wear, or forbids you from wearing certain clothing, like wearing a hijab, or a yarmulke, or not wearing pants, you may have some protection. Courts have held that employers have a legal obligation to reasonably accommodate their employees’ religious beliefs so long as it does not impose a burden or undue hardship on the employer under Title VII.

A court held, for example, that a particular woman did not have to wear pants at work because her religion prohibited it, when her boss did not try to make reasonable accommodations for her religious beliefs. However, when another boss did try to accommodate his employee’s religious beliefs, a court found that a certain employee could not demonstrate an anti-abortion button. There have been a number of cases involving hijabs worn by Muslims and turbans worn by Sikhs, which have generally resulted in employers being required to accommodate clothing worn by employees for religious reasons.

If your employer wants to lawfully prevent you from wearing certain clothing, it must show that allowing you to wear this clothing would pose an undue hardship on the business. While customer preference would rarely, if ever, meet the undue burden test, safety hazards often will. For example, a factory may impose clothing restrictions for assembly line workers to protect them from loose clothing getting caught in the machinery or to protect them from getting burns. For more information on this topic please see our page on religious freedom.


Does my employer, or prospective employer, have a responsibility to provide me with a dress code accommodation, when they reasonably know I need one, even if I did not ask for one?

Yes. According to Title VII of the 1964 Civil Rights Act, employers must provide “reasonable accommodation” to employees requesting religious accommodations so long as the request does not cause the employer an “undue hardship.” However, in light of the Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores case, where a woman was declined a sales associate job because her hijab violated Abercrombie’s “look policy” even though the applicant was not informed of this policy, the Supreme Court held that if management has even a suspicion about an applicant or an employee’s religious views, it may violate Federal civil rights laws to not hire or accommodate that applicant or employee, while enforcing a completely neutral job rule.


Can my employer ban me from wearing union buttons or t-shirts with the union logo?

You may have a claim under the National Labor Relations Act if the employer attempts to universally ban the wearing of all union insignia, even in a nonunion workplace. Employers are allowed to set neutral policies which prohibit certain types of clothing, such as t-shirts with union logos if the employer bans all t-shirts, if the employer enforces the policy uniformly.

However, several courts have determined that employees have the right to wear union buttons and pins to work, with two exceptions:

 if wearing these items creates a safety hazard or,

 in the case of workers with public contact, if the employees consistently are required to wear uniforms without buttons and pins.


I feel that my employer's dress code has violated my privacy rights or might be discriminatory. What can I do?

While employers have a fair amount of latitude in enforcing dress code provisions, if you feel that your privacy rights have been violated by your employer or believe the enforcement of the dress code is discriminatory, contact your state department of labor, or a private attorney for more information.

Credit Checks


I am applying for a new job, and they have asked me to sign a form which allows the employer to run a credit check. Can the employer use that information in determining whether to hire me?

Possibly. Many employers now use the same credit files used by credit card providers and mortgage brokers to determine whether you are the most financially stable and reliable employee for the job. Credit agencies can share your information with those who have a legitimate business need for the information. An employer using your report to determine your eligibility for “employment, promotion, reassignment or retention” is therefore entitled to access. Whether an employer can run a credit check will depend on what state you live in.

The Fair Credit Reporting Act (FCRA) governs the use of credit information in the employment setting. The FCRRCA is designed to ensure that you are aware of and agree to your credit report being used for employment purposes, and that you are notified promptly if information in a credit report may be used in a negative employment decision. If you are job hunting, you may want to check your credit report with each of the three major credit reporting agencies (Experian, Trans Union, and Equifax). You are entitled to a free copy of your report from each agency every twelve months. For more information, see the official website to obtain your free report at annualcreditreport.com.

Although employers must request your permission before obtaining your credit report, the FCRA does not prevent employers from denying you a job or promotion, or even terminating you on the basis of your negative credit–even if your credit report is incorrect. Some employers have even used an employee’s credit report to find out whether the employee was looking for work with other companies, since the credit report lists all companies who have recently accessed the employee’s credit.

However, 11 states have passed legislation that limits an employer’s ability to use your credit report in the employment setting. Those states are: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont, and Washington. In most of those states, it is now an illegal employment practice for an employer to use a credit report in making employment related decisions. There are exceptions in most states that allow certain employers to use your credit report,, including financial institutions, public safety officers, and where a credit report could be related to your job duties. Currently there are 34 bills under consideration which would place restrictions on credit considerations for employment. Additionally, some localities such as New York City, have implemented bands on credit checks for potential employees.


I am up for a promotion, and was asked to give permission for a credit check. Can the employer use that information against me to deny me a promotion?

Possibly. Again, this will depend on which state you live in. Under federal law, with your permission, the employer can use the credit check as one of the factors in determining the best candidate for the job. It does not matter whether or not the job has anything to do with handling money, juggling budgets, or similar tasks for which credit information might relate more directly to your fitness for the job.

However, if you live in any of the 11 states in which legislation concerning credit checks has been passed (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont, and Washington), your employer may not use this information to deny you a promotion.


Does my employer have to get my permission before requesting a credit check?

Yes. The FCRA requires that you give written permission before your employer can access your credit report. An employer who does not obtain your permission before requesting your report has violated the FCRA.


My employer says I have given permission for a credit check, but I didn't recall granting them permission. They showed me the form, and it was buried deep in a bunch of other text on my application form. Is that adequate to show my approval?

No. The written disclosure that your employer will seek credit information about you must be contained within a separate document used solely for that purpose, with a separate authorization signature required. It cannot be buried in a job application or employee handbook.


I granted my employer permission to check my credit when I was hired several years ago, but it was not checked at that time. Now, a new manager has decided that everyone's credit should be checked. Does my employer have to give me notice that it is now checking credit reports?

No. Once you have given written permission, the employer is not legally required to give any additional notice before actually obtaining the report from a credit reporting agency. Even if you had good credit when you started work, your employment could be at risk if your employer decides to check your credit later, and your credit rating has declined in the meantime.


What if I refuse to give my employer permission to check my credit? Can my employer fire me?

Without your permission, your employer cannot check your credit report, but your refusal may leave your employer thinking that you have something to hide. Under federal law, there is nothing in that situation that protects you from being terminated or not getting hired by a prospective employer. However, 11 states (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont, and Washington) have passed legislation that protect against such discrimination.


I was the victim of identity theft, and there is some negative information on my credit report that isn't correct. Can my employer use that against me?

Your employer can technically use any information in your credit report any way it wants, as there is no protection against losing your job on the basis of information in your credit report. However, before your employer rejects you for a job based “in whole or in part” on something in your credit report, the employer must give you a copy of the report before turning you down and written instructions on challenging the accuracy of the report. For more information, see question 8.

The FCRA’s notice provision is supposed to give you some opportunity to work with the credit bureaus to ensure that all information in the report is accurate–which you should already be doing if you know there is a problem. Hopefully, your credit file will reflect that you were the victim of identity theft, if that is the case, and your employer will be reasonable and not use that information against you.

However, your employer does not have to give you time to get the information investigated and corrected, and cannot be held liable for taking action against you due to information in your credit report, even if the information is erroneous.

For more information, see the FTC publication: How To Dispute Credit Report Errors.


I want to check my own credit reports to see what is on them, how can I do this?

The FCRA requires the three major credit reporting agencies, Equifax Experian, and TransUnion, to provide you with a free credit report once every 12 months. It is important to check your credit reports once a year because some studies show that nearly one-third of credit reports have mistaken information on them. You don’t need to individually contact all three credit reporters. To review the various ways you can request all three free reports visit the Federal Trade Commission website.


I believe there are mistakes on my credit reports, can I fix mistakes on my report?

Yes, there are steps you can take to correct mistakes on your credit reports. The first thing you need to do is get a copy of your credit reports, as explained above. Next, write a letter to the credit reporting agency that you believe has recorded a mistake, include a copy of your report and all documents that help prove what you explained in your letter. Remember to request that the item be removed or corrected. Keep copies and verification that you sent the letter, like a return receipt, certified mail receipt, or copy of the envelope. Additionally, the reporting agencies are required to review your report and your allegation of error. If they agree a mistake was made, you may request that they send the correct information to all individuals that requested your credit report. Finally you need to write the organization that has provide the credit companies with the incorrect information and explain to them that they are reporting mistaken information to the credit reporting agencies and how you would like them to resolve the issue.


Does a potential employer have to tell me that I was denied a job on the basis of my credit report?

In theory yes, however it is easy for employers to avoid this requirement by finding some other basis to deny you the job. Before your employer rejects you for a job based “in whole or in part” on something in your credit report, the employer must give you a “pre-adverse action disclosure,” consisting of:

 A copy of the report used; and

 Written instructions on challenging the accuracy of the report–generally accomplished by including a copy of the Federal Trade Association’s pamphlet: ‘A Summary of Your Rights Under the FCRA’.

However, it is difficult to determine whether an employer has been influenced by your credit report and/or violated the law, if the employer gives some other legitimate reason for the decision.


I received notice that my employer is considering taking action against me due to my credit report, and now I've been fired without a reason. How do I know whether that's the reason I was fired?

If your employer has decided to take adverse action against you, such as firing you or denying you a promotion, or a reassignment, because of your credit report, it must provide you with an “adverse action notice,” containing the following information:

 The name, address and phone number of the credit reporting agency used;

 notice of your right to obtain another free copy of your credit report, upon request and within 60 days;

 notice of your right to dispute the accuracy of the report with the credit reporting agency; and

 notice that the credit reporting agency did not make the decision to take adverse action against you and is therefore unable to provide the specific reason(s) why the action was taken.

However, as noted above, your employer may give another legitimate reason, or may not give a reason at all, once they are aware of the negative information in your credit report. Even though the employer is supposed to give you the information listed above if information in your credit report influenced the employment decision in whole or in part, it is difficult to prove whether the employer followed the law when making its decision.


What do I do if I think my employer has violated the Fair Credit Reporting Act?

Under the FCRA, a current or prospective employer cannot be sued for defamation, invasion of privacy, or negligence regarding its use of the information in the credit report, unless the information was false and provided with malice or willful intent to injure you. This is a very high legal standard and unlikely to be met in most cases.

However, an employer who violates the FCRA can be sued for actual damages, court costs, and reasonable attorney’s fees, and in the case of a willful violation, can be sued for punitive damages. The Federal Trade Commission (FTC) can also sue employers for civil penalties of up to $2500 per violation. Some states may also have laws which protect you in this situation.

If you think your rights under the FCRA have been violated, contact a local attorney and/or fill out an FTC Consumer Complaint Form.


What do I do if I have been denied a job or fired on the basis of my credit report?

As mentioned above, under federal law, the FCRA does not contain any remedies for individuals denied jobs on the basis of information from their credit reports, even if the negative information used is inaccurate. If the information in your credit report is inaccurate, you should make it a priority to get it corrected. If it is accurate, then you may need to find a different employer who does not check credit reports for all or any jobs.

If you think that your employer used your credit report as a smokescreen for another form of retaliation or discrimination, or has used a negative credit report against some employees but not other similarly situated employees, then you may want to consult with an attorney to see if you have other grounds for challenging the employer’s action.

However, if you live in a state that has passed legislation concerning credit checks in the employment setting (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont, and Washington), you should contact a lawyer to find out more about your rights.


Where can I find more information?

Criminal Records


What is a criminal record?

A criminal record is documentation of a person’s criminal history compiled on local, state, and federal levels by law enforcement agencies. The record usually lists non-expunged offenses including traffic violations.


When are criminal records used?

Criminal records are typically used by potential employers, lenders, and other parties to determine the extent of an individual’s criminal activity. They are also used by some regulatory agencies to determine eligibility for occupational licenses. In the case of occupational licenses, agencies check to see if an individual was convicted of an offense that that bears on fitness to be licensed in that particular occupation.


How can I check my criminal record?

While there are many sites claiming to give you access to your criminal record, the safest and most accurate way is to request the criminal record from the jurisdiction in which you were convicted. The process for doing so varies by jurisdiction, so you must check with the police department or court in that jurisdiction for information on the process.

If the criminal record is for a federal crime then you must contact the FBI’s Criminal Justice Services Division for an Identity History Summary Check.


Can employers use criminal records in hiring decisions?

Yes. Most states allow employers to use criminal records when making hiring decisions. When making this type of hiring decision, the employer must show that there was “business necessity” for making the hiring decision. There must be some showing that the employer’s policy is reasonably related to the job requirements.


What process must an employer use to gain access to criminal records?

The Fair Credit Reporting Act is a federal law that requires employers to provide notice when accessing your credit report or criminal record. In order to access a candidate’s criminal record, the employer must ensure the report is used for a permissible purpose, and have the authorization to use the report. Before using a criminal record in a hiring decision, the employer must provide the candidate with a copy of the report and a summary of his rights.


Why would an employer use criminal records in hiring decisions?

Many employers conduct pre-employment background checks to protect themselves against lawsuits for negligent hiring. Negligent hiring occurs when the employer knew or should have known that an employee was dangerous or unfit for a particular position. If an employee harms another person while working, the employer may have to pay.


Can employers use arrest history in hiring decisions?

Most states have laws that ban the use of arrest history that did not lead to conviction in hiring decisions. Some states allow the use of arrest records, but an employer may not automatically exclude individuals from employment based on their arrest record. When an arrest record is used, it is only appropriate for an employer to use arrest records in a hiring decision when:

  1. The arrest is recent;
  2. It is likely the applicant committed the crime; and
  3. There is a relationship between the position and the reason for arrest (For example, you were arrested for theft and applying for a cashier position)


Can a criminal record bar employment in certain fields?

Yes, a criminal record may ban employment in certain fields. For example, in certain circumstances, a criminal records can bar a person from employment in banks. Similarly, if an individual has a felony conviction on their criminal record, they are banned from possession or use of a firearm and therefore cannot work in a position that requires them to carry a gun. Some states require employers involved in industries that engage in business with “vulnerable individuals” to conduct criminal record checks for specific convictions before hiring employees. These industries include positions that work with children and elderly adults; particularly, childcare, education and home health aid.


What should you do if there is a mistake on your criminal record?

If there is a mistake on your criminal record such as incorrect, incomplete, or duplicate entries, you should contact your State Police Department or the Federal Bureau of Investigations (to obtain criminal records outside your particular state).


Can I get a criminal offense off of my record?

You may be able to get a criminal offense expunged from your record, or have your record sealed. Expungement is the process that clears all documented references of prior criminal convictions. Expungement is not available for all types of convictions and may also be subject to waiting periods before it is available. Check with the courts in the jurisdiction where you were convicted to get specific information about whether your convictions may be expunged. When a criminal record is sealed, the crime is no longer available to the public. Although, if a criminal record is sealed, it is still available to law enforcement, prosecutors, and other agencies who can use it against you in sentencing if you commit a new crime.


Which crimes cannot be expunged from a criminal record?

Some crimes that cannot be expunged include:

  • 1st and 2nd degree felonies;
  • Violent 1st and 2nd degree misdemeanors (including domestic violence);
  • Rape;
  • Sexual battery; and
  • Driver’s license and motor vehicle violations

For a complete list of offenses that cannot be expunged, contact the court where you were convicted.


How do I expunge or seal a record?

Each state has different requirement and procedures for expunging or sealing a criminal record. The first step is to contact your local Clerk’s office at the court where you were convicted to obtain a “final order” of the conviction. Contacting this office will help determine whether you are eligible to expunge or seal your criminal record.


How should I explain my criminal record to a potential employer?

When explaining your criminal record, be sure to focus on what you learned. Focus your conversations on the present and future rather then the past, and highlight what your experience can bring to the particular position.


If I have a criminal record, how can I find a job?

Ex-offenders can seek professional assistance from local organizations. Help For Felons has created a list of organizations in each state that can help people with criminal records find employment. There are also some companies, like the ones listed here, which are ‘felon-friendly’ employers and make it relatively easier to get a job with criminal record. Also, you may want to consider starting your own business. The Small Business Administration has a ten-step process to help you do so.


Can an employer ask about my conviction record in an interview?

Yes, an employer may ask about your conviction record in an interview. It is important to answer specifically based on the questions that are asked and to answer truthfully. If you do not answer truthfully in an interview, the employer has the legal right to refuse to hire you. If you are hired and the employer later finds out that you lied during the interview, they may fire you.


Can an employer ask if I've ever been arrested in an interview?

While most states ban the use of arrest history that did not lead to conviction in hiring decisions, most states do not ban employers from asking about arrests in interviews. Most states allow most or all potential employers to ask about arrests as well as convictions during a job interview. If you live in a state that does not prohibit employers from asking about arrests, it is important that you answer this question truthfully.


What should I say in an interview or on an employment form if my criminal record has been expunged?

If your record is expunged, you can answer “No, I do not have a criminal record.” By law, an employer is not allowed to ask you about any charges, arrests or convictions that have been expunged from your record. After the record is expunged, it is legally considered to no longer exist. This includes charges or cases that were dismissed, or where you were found not guilty. This does not include multiple charges for the same offense where only some of the charges were dropped.


I was denied a job and think it was because of my criminal or arrest record. What do I do?

Generally, most state law prohibits the use of past crimes or arrest records as a factor against you in a hiring decision unless it is in some way relevant to the job position, or if your conviction bans your from working in that particular field. In some cases, the use of criminal records in a hiring decision may be discriminatory. If you think your rights may have been violated, you should contact a lawyer licensed in your state.


What is the 'Ban the Box' campaign, and how does it relate to criminal records?

Ban the Box is a campaign to remove questions about past criminal convictions from job applications and push background checks to a later point in the hiring process so that employers consider a candidate’s qualifications first without the stigma of a past criminal conviction.

For more information about Ban the Box, visit our Ban the Box State Laws tab.

State Laws on Employee Arrest and Conviction Records


State Laws on Employee Arrest and Conviction Records

CAUTION: Additional laws may apply. If the chart below indicates that your state has no statute, this means there is no law that specifically addresses the issue. However, there may be a state administrative regulation or local ordinance that does control arrest and conviction records. Call your state department of labor for more information.

The following chart summarizes state laws and regulations on whether an employer can get access to an employee’s or prospective employee’s past arrests or convictions. It includes citations to statutes and agency websites, as available.

Many states allow or require private sector employers to run background checks on workers, particularly in fields like child care, elder care, home health care, private schools, private security, and the investment industry. Criminal background checks usually consist of sending the applicant’s name (and sometimes fingerprints) to the state police or to the FBI. State law may forbid hiring people with certain kinds of prior convictions, depending on the kind of job or license involved.

Federal law allows the states to establish procedures for requesting a nationwide background check to find out if a person has been “convicted of a crime that bears upon the [person’s] fitness to have responsibility for the safety and well-being of children, the elderly, or individuals with disabilities.” (42 U.S.C.A. § 5119a(a)(1).)

If your state isn’t listed in this chart, then it doesn’t have a general statute on whether private sector employers can find out about arrests or convictions. There might be a law about your particular industry, though.

It’s always a good idea to consult your state’s nondiscrimination enforcement agency or labor department to see what kinds of questions you can ask. The agency guidelines are designed to help employers comply with state and federal law. For further information, contact your state’s agency.


Alaska

Agency guidelines for preemployment inquiries: Alaska Department of Labor and Workforce Development, Alaska Employer Handbook, “Preemployment Questioning”.


Arizona

Ariz. Rev. Stat. § 13-904(E)

Rights of employees and applicants: Unless the offense has a reasonable relationship to the occupation, an occupational license may not be denied solely on the basis of a felony or misdemeanor conviction.


California

Cal. Lab. Code § 432.7

Rules for employers:

  • Arrest records. May not ask about an arrest that did not lead to conviction; may not ask about pretrial or posttrial diversion program. May ask about arrest if prospective employee is awaiting trial.
  • Convictions. May ask about conviction even if no sentence is imposed.

Agency guidelines for preemployment inquiries: Department of Fair Employment and Housing, “Preemployment Inquiry Guidelines”.


Colorado

Colo. Rev. Stat. §§ 24-72-308 (II)(f)(I), 8-3-108(m)

Rules for employers: May not inquire about arrest for civil or military disobedience unless it resulted in conviction.

Rights of employees and applicants: May not be required to disclose any information in a sealed record; may answer questions about arrests or convictions as though they had not occurred.

Agency guidelines for preemployment inquiries: Colorado Civil Rights Division, Publications, “Pre-Employment Inquiries”.


Connecticut

Conn. Gen. Stat. Ann. §§ 46a-79, 46a-80, 31-51i

Rules for employers: State policy encourages hiring qualified applicants with criminal records. If an employment application form contains any question concerning criminal history, it must include a notice in clear and conspicuous language that (1) the applicant is not required to disclose the existence of any arrest, criminal charge, or conviction, the records of which have been erased; (2) defining what criminal records are subject to erasure; and (3) any person whose criminal records have been erased will be treated as if never arrested and my swear so under oath. Employer may not disclose information about a job applicant’s criminal history except to members of the personnel department or, if there is no personnel department, person(s) in charge of hiring or conducting the interview.

Rights of employees and applicants: May not be asked to disclose information about a criminal record that has been erased; may answer any question as though arrest or conviction never took place. May not be discriminated against in hiring or continued employment on the basis of an erased criminal record. If conviction of a crime has been used as a basis to reject an applicant, the rejection must be in writing and specifically state the evidence presented and the reason for rejection.


Delaware

Del. Code Ann. tit. 11, § 4374(e)

Rights of employees and applicants: Do not have to disclose an arrest or conviction record that has been expunged.


Florida

Fla. Stat. Ann. § 112.011

Rights of employees and applicants: May not be disqualified to practice or pursue any occupation or profession that requires a license, permit, or certificate because of a prior conviction, unless it was for a felony or first-degree misdemeanor and is directly related to the specific line of work.


Georgia

Ga. Code Ann. §§ 35-3-34, 42-8-62, 42-8-63

Rules for employers: In order to obtain a criminal record from the state Crime Information Center, employer must supply the individual’s fingerprints or signed consent. If an adverse employment decision is made on the basis of the record, must disclose all information in the record to the employee or applicant and tell how it affected the decision.

Rights of employees and applicants: Probation for a first offense is not a conviction; may not be disqualified for employment once probation is completed.


Hawaii

Haw. Rev. Stat. §§ 378-2, 378-2.5, 831-3.2

Rules for employers:

  • Arrest records. It is a violation of law for any employer to refuse to hire, to discharge, or to discriminate in terms of compensation, conditions, or privileges of employment because of a person’s arrest or court record.
  • Convictions. May inquire into a conviction only after making a conditional offer of employment, provided it has a rational relation to job. May not examine any convictions over 10 years old.

Rights of employees and applicants: If an arrest or conviction has been expunged, may state that no record exists and may respond to questions as a person with no record would respond.

Agency guidelines for preemployment inquiries: Hawaii Civil Rights Commission, “Guideline for Pre-Employment Inquiries”.


Idaho

Agency guidelines for preemployment inquiries: Idaho Human Rights Commission, “Preemployment Inquiries”.


Illinois

775 Ill. Comp. Stat. § 5/2-103

Rules for employers: It is a civil rights violation to ask about an arrest or criminal history record that has been expunged or sealed, or to use the fact of an arrest or criminal history record as a basis for refusing to hire or to renew employment. Law does not prohibit employer from using other means to find out if person actually engaged in conduct for which they were arrested.


Kansas

Kan. Stat. Ann. §§ 22-4710

Rules for employers: Cannot require an employee to inspect or challenge a criminal record in order to obtain a copy of the record, but may require an applicant to sign a release to allow employer to obtain record to determine fitness for employment. Employers can require access to criminal records for specific businesses.

Agency guidelines for preemployment inquiries: Kansas Human Rights Commission, “Guidelines on Equal Employment Practices: Preventing Discrimination in Hiring”.


Louisiana

La. Rev. Stat. Ann. § 37:2950

Rights of employees and applicants: Prior conviction cannot be used as a sole basis to deny employment or an occupational or professional license, unless conviction is for a felony and directly relates to the job or license being sought.

Special situations: Protection does not apply to medical, engineering and architecture, or funeral and embalming licenses, among others listed in the statute.


Maine

Me. Rev. Stat. Ann. tit. 5, § 5301

Rights of employees and applicants: A conviction is not an automatic bar to obtaining an occupational or professional license. Only convictions that directly relate to the profession or occupation, that include dishonesty or false statements, that are subject to imprisonment for more than 1 year, or that involve sexual misconduct on the part of a licensee may be considered.

Agency guidelines for preemployment inquiries: The Maine Human Rights Commission, “Pre-employment Inquiry Guide”, suggests that asking about arrests is an improper race-based question, but that it is okay to ask about a conviction if related to the job.


Maryland

Md. Code Ann. [Crim. Proc.], § 10-109; Md. Regs. Code 09.01.10.02

Rules for employers: May not inquire about any criminal charges that have been expunged. May not use a refusal to disclose information as sole basis for not hiring an applicant.

Rights of employees and applicants: Need not refer to or give any information about an expunged charge. A professional or occupational license may not be refused or revoked simply because of a conviction; agency must consider the nature of the crime and its relation to the occupation or profession; the conviction’s relevance to the applicant’s fitness and qualifications; when conviction occurred and other convictions, if any; and the applicant’s behavior before and after conviction.

Agency guidelines for preemployment inquiries: The Office of Equal Opportunity and Program Equity, “Guidelines for Preemployment Inquiries Technical Assistance Guide”.


Massachusetts

Mass. Gen. Laws ch. 151B, § 4; ch. 276, § 100A; Mass. Regs. Code tit. 804, § 3.02

Rules for employers: If job application has a question about prior arrests or convictions, it must include a formulated statement (that appears in the statute) that states that an applicant with a sealed record is entitled to answer, “No record.”

  • Arrest records. May not ask about arrests that did not result in conviction.
  • Convictions. May not ask about first-time convictions for drunkenness, simple assault, speeding, minor traffic violations, or disturbing the peace; may not ask about misdemeanor convictions 5 or more years old.

Rights of employees and applicants: If criminal record is sealed, may answer, “No record” to any inquiry about past arrests or convictions.

Agency guidelines for preemployment inquiries: Massachusetts Commission Against Discrimination, “Discrimination on the Basis of Criminal Record”.


Michigan

Mich. Comp. Laws § 37.2205a

Rules for employers: May not request information on any arrests or misdemeanor charges that did not result in conviction.

Rights of employees and applicants: Employees or applicants are not making a false statement if they fail to disclose information they have a civil right to withhold.

Agency guidelines for preemployment inquiries: Michigan Civil Rights Commission, “Preemployment Inquiry Guide”.


Minnesota

Minn. Stat. Ann. §§ 364.01 to 364.03

Rules for employers: State policy encourages the rehabilitation of criminal offenders; employment opportunity is considered essential to rehabilitation.

Rights of employees and applicants: No one can be disqualified from pursuing or practicing an occupation that requires a license, unless the crime directly relates to the occupation. Agency may consider the nature and seriousness of the crime and its relation to the applicant’s fitness for the occupation. Even if the crime does relate to the occupation, a person who provides evidence of rehabilitation and present fitness cannot be disqualified.

Agency guidelines for preemployment inquiries: Minnesota Department of Human Rights, “Hiring, Job Interviews and the Minnesota Human Rights Act”.


Missouri

Agency guidelines for preemployment inquiries: Commission on Human Rights, Missouri Department of Labor and Industrial Relations, “Preemployment Inquiries”.


Nebraska

Neb. Rev. Stat. § 29-3523

Rules for employers: After one year from date of arrest, may not obtain access to information regarding arrests if no charges are completed or pending.


Nevada

Nev. Rev. Stat. Ann. §§ 179.301, 179A.100(3)

Rules for employers: May obtain a prospective employee’s criminal history record only if it includes convictions or a pending charge, including parole or probation.

Special situations: State Gaming Board may inquire into sealed records to see if conviction relates to gaming.

Agency guidelines for preemployment inquiries: Nevada Equal Rights Commission, “Preemployment Inquiry Guide”.


New Hampshire

N.H. Rev. Stat. Ann. § 651:5 (X)(c); N.H. Code Admin. R. Hum. 405.03

Rules for employers: May ask about a previous criminal record only if question substantially follows this wording, “Have you ever been arrested for or convicted of a crime that has not been annulled by a court?”

  • Arrest records. It is unlawful discrimination for an employer to ask about an arrest record, to have a job requirement that applicant have no arrest record, or to use information about arrest record to make a hiring decision, unless it is a business necessity. It is unlawful discrimination to ask about arrest record if it has the purpose or effect of discouraging applicants of a particular racial or national origin group.


New Jersey

N.J. Stat. Ann. §§ 5:5-34.1, 5:12-89 to 5:12-91, 32:23-86; N.J. Admin. Code tit. 13, §§ 59-1.2, 59-1.6

Rules for employers: May obtain information about convictions and pending arrests or charges to determine the subject’s qualifications for employment. Employers must certify that they will provide sufficient time for applicant to challenge, correct, or complete record, and will not presume guilt for any pending charges or court actions.

Rights of employees and applicants: Applicant who is disqualified for employment based on criminal record must be given adequate notice and reasonable time to confirm or deny accuracy of information.

Special situations: There are specific rules for casino employees, longshoremen and related occupations, horse racing, and other gaming industry jobs.


New Mexico

Criminal Offender Employment Act, N.M. Stat. Ann. § 28-2-3

For a license, permit, or other authority to engage in any regulated trade, business, or profession, a regulating agency may consider convictions for felonies and for misdemeanors involving moral turpitude. Such convictions cannot be an automatic bar to authority to practice in the regulated field, though.


New York

N.Y. Correct. Law §§ 750 to 754; N.Y. Exec. Law § 296(16)

Rules for employers:

  • Arrest records. It is unlawful discrimination to ask about any arrests or charges that did not result in conviction, unless they are currently pending.
  • Convictions. Employers with 10 or more employees may not deny employment based on a conviction unless it relates directly to the job or would be an “unreasonable” risk to property or to public or individual safety.

Rights of employees and applicants: Upon request, applicant must be given, within 30 days, a written statement of the reasons why employment was denied.

Agency guidelines for preemployment inquiries: New York State Division of Human Rights, “Recommendations on Employment Inquiries”.


North Dakota

N.D. Cent. Code § 12-60-16.6

Rules for employers: May obtain records of convictions or of criminal charges (adults only) occurring in the past three years, provided the information has not been purged or sealed.

Agency guidelines for preemployment inquiries: North Dakota Department of Labor, Human Rights Division, “Employment Applications and Interviews”.


Ohio

Ohio Rev. Code Ann. §§ 2151.357, 2953.33, 2953.55

Rules for employers: May not inquire into any sealed convictions or sealed bail forfeitures, unless question has a direct and substantial relation to job.

Rights of employees and applicants: May not be asked about arrest records that are sealed; may respond to inquiry as though arrest did not occur.


Oklahoma

Okla. Stat. Ann. tit. 22, § 19(F)

Rules for employers: May not inquire into any criminal record that has been expunged.

Rights of employees and applicants: If record is expunged, may state that no criminal action ever occurred. May not be denied employment solely for refusing to disclose sealed criminal record information.


Oregon

Or. Rev. Stat. §§ 181.555 and 181.560, 659A.030

Rules for employers: Before requesting information, employer must notify employee or applicant; when submitting request, must tell State Police Department when and how person was notified. May not discriminate against an applicant or current employee on the basis of an expunged juvenile record unless there is a “bona fide occupational qualification.”

  • Arrest records. May request information about arrest records less than 1 year old that have not resulted in acquittal or have not been dismissed.
  • Convictions. May request information about conviction records.

Rights of employees and applicants: Before State Police Department releases any criminal record information, it must notify employee or applicant and provide a copy of all information that will be sent to employer. Notice must include protections under federal civil rights law and the procedure for challenging information in the record. Record may not be released until 14 days after notice is sent.


Pennsylvania

18 Pa. Cons. Stat. Ann. § 9125

Rules for employers: May consider felony and misdemeanor convictions only if they directly relate to person’s suitability for the job.

Rights of employees and applicants: Must be informed in writing if refusal to hire is based on criminal record information.

Agency guidelines for preemployment inquiries: Pennsylvania Human Relations Commission.


Rhode Island

R.I. Gen. Laws §§ 12-1.3-4, 28-5-7(7)

Rules for employers:

  • Arrest records. It is unlawful to include on an application form or to ask as part of an interview if the applicant has ever been arrested or charged with any crime.
  • Convictions. May ask if applicant has been convicted of a crime.

Rights of employees and applicants: Do not have to disclose any conviction that has been expunged.


South Dakota

Agency guidelines for preemployment inquiries: South Dakota Division of Human Rights, “Preemployment Inquiry Guide” suggests that an employer shouldn’t ask or check into arrests or convictions if they are not substantially related to the job.


Texas

Tex. Bus. & Com. Code Ann. § 20.05 (Vernon 2005).

Rules for employers: For a job expected to pay less than $75,000 they, generally, may not obtain a criminal record older than seven years.


Utah

Utah Admin. R. 606-2

Rules for employers: Utah Labor Division Anti-Discrimination Rules, Rule R606-2. “Preemployment Inquiry Guide”.

  • Arrest records. It is not permissible to ask about arrests.
  • Convictions. Asking about felony convictions is permitted but is not advisable unless related to job.


Vermont

Vt. Stat. Ann. tit. 20, § 2056c

Rules for employers: Only employers who provide care for children, the elderly, and the disabled or who run postsecondary schools with residential facilities may obtain criminal record information from the state Criminal Information Center. May obtain record only after a conditional offer of employment is made and applicant has given written authorization on a signed, notarized release form.

Rights of employees and applicants: Release form must advise applicant of right to appeal any of the findings in the record.


Virginia

Va. Code Ann. § 19.2-392.4

Rules for employers: May not require an applicant to disclose information about any criminal charge that has been expunged.

Rights of employees and applicants: Need not refer to any expunged charges if asked about criminal record.


Washington

Wash. Rev. Code Ann. §§ 43.43.815, 9.94A.640(3), 9.96.060(3), 9.96A.020; Wash. Admin. Code § 162-12-140

Rules for employers:

  • Arrest records. Employer who asks about arrests must ask whether the charges are still pending, have been dismissed, or led to conviction that would adversely affect job performance once and the arrest occurred within the last ten years.
  • Convictions. Employer who obtains a conviction record must notify employee within 30 days of receiving it and must allow the employee to examine it. May make an employment decision based on a conviction only if it is less than 10 years old and the crime involves behavior that would adversely affect job performance.

Rights of employees and applicants: If a conviction record is cleared or vacated, may answer questions as though the conviction never occurred. A person convicted of a felony cannot be refused an occupational license unless the conviction is less than 10 years old and the felony relates specifically to the occupation or business.

Special situations: Employers are entitled to obtain complete criminal record information for positions that require bonding, or that have access to trade secrets, confidential or proprietary business information, money, or items of value.

Agency guidelines for preemployment inquiries: Washington Human Rights Commission’s “Pre-employment Inquiries Guide”


West Virginia

Agency guidelines for preemployment inquiries: Bureau of Employment Programs, “Preemployment Inquiries Technical Assistance Guide”. The state’s website says that employers can only make inquiries about convictions directly related to the job. Consider the nature and recentness of the conviction and evidence of rehabilitation. Include a disclaimer that a conviction is not necessarily a bar to employment.


Wisconsin

Wis. Stat. Ann. §§ 111.31 and 111.335

Rules for employers: It is a violation of state civil rights law to discriminate against an employee on the basis of a prior arrest or conviction record.

  • Arrest records. May not ask about arrests unless there are pending charges.
  • Convictions. May not ask about convictions unless charges substantially relate to job.

Special situations: Employers are entitled to obtain complete criminal record information for positions that require bonding and for burglar alarm installers.

Agency guidelines for preemployment inquiries: Wisconsin Department of Workforce Development, Civil Rights Division Publications, Fair Hiring & Avoiding Loaded Interview Questions.

Ban the Box – State Laws on Criminal Records


What is Ban the Box?

Ban the Box is a campaign to remove questions about past criminal convictions from job applications and push background checks to a later point in the hiring process so that employers consider a candidate’s qualifications first without the stigma of a past criminal conviction.

The campaign has been growing with over 30 states and 150 counties and cities adopting Ban the Box style legislation laws and 30 states. Furthermore, the federal government has ‘banned the box’ in regards to federal employers, though not federal contractors. The following states have some form of Ban the Box laws:


Arizona

Unless the offense has a reasonable relationship to the occupation, an occupational license may not be denied solely on the basis of a felony or misdemeanor conviction.


California

Does the law affect public or private sector employers?

This law affects all employers with 5 or more employees.

What are the rules?

Employers may not include on any application for employment any question that seeks the disclosure of an applicant’s conviction history.

Employers cannot deny an applicant position solely because of conviction history. In the event the employer denies the applicant, there needs to be an assessment which considers:

  • The nature and gravity of the offense
  • The time that has passed since the offense and completion of the sentence
  • The nature of the job

It is a FEHA (California Fair Employment and Housing Act) violation for an employer with 5 or more employees to ask about an applicant’s conviction history.


Colorado

Does this rule apply to private or public employers?

This law applies to both public and private employers.

What are the rules?

Employers may not require an applicant to disclose any information that is contained in a sealed record.This does not necessarily mean that the employer is prohibited from asking about an employee’s conviction history, they are only prohibited from asking if the record has been sealed. If the record has been sealed, the employee may answer questions about arrests or convictions as though they had not occurred.

Employers are further prohibited from inquiring about arrest for civil or military disobedience unless it resulted in a conviction.


Connecticut

Does this law affect private or public employees?

This law affects all employers in the state of Connecticut.

What are the rules?

No employer may inquire about an applicant’s prior arrests, criminal charges, or convictions on an initial employment application, unless (1) the employer is required to do so by law, or (2) a security or fidelity bond or equivalent bond is required for the position. Employers may not disclose information about a job applicant’s criminal history except to members of the personnel department or, if there is no personnel department, person(s) in charge of hiring or conducting the interview.

Employees not be asked to disclose information about a criminal record that has been erased; may answer any question as though arrest or conviction never took place. May not be discriminated against in hiring or continued employment on the basis of an erased criminal record. If conviction of a crime has been used as a basis to reject an applicant, the rejection must be in writing and specifically state the evidence presented and the reason for rejection.


Delaware

Does this law apply to public or private employers?

This law applies to public employers only. Private employers may still inquire about an employee’s criminal history.

What are the rules? 

Employers may not inquire into or consider the criminal record, criminal history, or credit score of an applicant for employment during the initial application process, up to and including the first interview.

A public employer can disqualify an applicant based on criminal history where the disqualification is related to the position and consistent with business necessity. The employer should consider:

  • The nature of the offense
  • The time that has passed since the offense
  • The nature of the position sought


Florida

Employees and applicants may not be disqualified from practicing or pursuing any occupation or profession that requires a license, permit, or certificate because of a prior conviction, unless it was for a felony or first degree misdemeanor and is directly related to the specific line of work.


Georgia

Does this rule apply to private or public employers?

The executive order from the Governor of Georgia extends the law only to public employers acting under the executive branch in the state of Georgia.

What are the rules?

An employer may not use a prior criminal history as an automatic disqualifier for job applicants. Employers are also prevented from using an application form that discriminates against qualified job applicants. This practice provides qualified applicants with the opportunity to discuss the relevance of a criminal record with a prospective employer. Currently, the policy is only in effect for government entities, with no update to private employment practices.


Hawaii

Does this law apply to public or private employers?

This law applies to all employers in the state of Hawaii.

What are the rules?

Employers are prohibited from refusing to hire, to discharge, or to discriminate in terms of compensation, conditions, or privileges of employment because of a person’s arrest or court record.

An employer may inquire into a conviction only after making a conditional offer of employment, provided it has a rational relation to the job. Employers may not examine any convictions over 10 years old.

Employees with expunged records may state that no record exists and may respond to questions as a person with no record would respond.

Agency guidelines for preemployment inquiries: Hawaii Civil Rights Commission, “Guideline for Pre-Employment Inquiries”.


Idaho

Does the law affect public or private employers?

Idaho currently does not have any law regulating whether employers can ask applicants about their criminal history. Idaho does encourage employers to give a fair opportunity to applicants even though they may have a police record.

For more information, please see the Idaho Division of Human Resources Handbook


Illinois

Does this law affect public or private employers?

This law affects all employers with 15 or more employees in the state of Illinois.

What are the rules?

Employers that are covered by the law may not ask about criminal records of an applicant until the applicant is deemed otherwise qualified for the position and has been selected for an interview, or until a conditional offer of employment is made to the applicant.


Kansas

Does this law affect public or private employers?

The executive order affects all public employers in the executive branch.

What are the rules?

During the initial stage of an application, executive branch departments may not ask applicants whether they have a criminal record. A criminal record does not automatically disqualify an applicant from interview eligibility. The order, however, does not apply when a criminal history would render an applicant ineligible for a position.

For more information, see the agency guidelines for pre-employment inquiries:

Kansas Human Rights Commission, “Guidelines on Equal Employment Practices: Preventing Discrimination in Hiring”.


Louisiana

Does this law apply to private or public sector employees?

This law applies to only state employers.

What are the rules?

No state employers can inquire about an applicant’s criminal history until after the employee has been given an opportunity to interview, or until after a conditional offer of employment has been given.

In making a final determination, the state employer may consider:

  • The nature of the conduct
  • The time that has passed since the criminal conduct
  • The nature of the position and the effect the conduct will bear on the ability to perform the duties of the position.


Maine

Does this law apply to private or public employers?

Maine currently has no law regulating the use of an applicant’s criminal history during the application process. The only relevant law regards the effect of a criminal history on eligibility for an occupational license, registration, or permit granted by the state.

What are the rules?

In determining eligibility for the granting of any occupational license, registration, or permit issued by the state, the state may take into consideration the criminal history record of the applicant. The existence of such information does not, however, act as an automatic bar to a license. Only convictions that directly relate to the profession or occupation, that include dishonesty or false statements, that are subject to imprisonment for more than 1 year, or that involve sexual misconduct on the part of a licensee may be considered.

Agency guidelines for preemployment inquiries: The Maine Human Rights Commission, “Pre-employment Inquiry Guide”, suggests that asking about arrests is an improper race-based question, but that it is okay to ask about a conviction if related to the job.


Maryland

Does this law apply to public or private employers?

This law applies only to public employers. Private employers are not prohibited from inquiring into an applicant’s criminal history.

What are the rules?

State employers may not inquire into the criminal history of an applicant until the applicant has been provided an opportunity for an interview. The statute does not apply to:

  • A position in the Department of Public Safety and Correctional Services
  • A position for which the appointing authority has a statutory duty to conduct a criminal background check
  • A position in the office of the sheriff.

Agency guidelines for preemployment inquiries: The Office of Equal Opportunity and Program Equity, “Guidelines for Preemployment Inquiries Technical Assistance Guide”.


Massachusetts

Does this law apply to private or public employers?

This law applies to all employers in the state of Massachusetts.

What are the rules?

Employers are prohibited from asking, either written or orally, about criminal records that have been sealed or expunged.

If a job application has a question about prior arrests or convictions, it must include a formulated statement (that appears in the statute) that states that an applicant with a sealed record is entitled to answer, “No record.”

  • Arrest records. May not ask about arrests that did not result in conviction.
  • Convictions. May not ask about first-time convictions for drunkenness, simple assault, speeding, minor traffic violations, or disturbing the peace; may not ask about misdemeanor convictions 3 years or more years old.

Agency guidelines for preemployment inquiries: Massachusetts Commission Against Discrimination, “Discrimination on the Basis of Criminal Record”.


Michigan

Does this law apply to private or public employers?

This law applies to all employers, employment agencies, or labor organizations, other than a law enforcement agency of the state of Michigan.

What are the rules?

Employers are prohibited from asking about an arrest, detention or disposition where a conviction did not result. A person is not guilty if they fail to disclose information they have civil right to withhold.

Agency guidelines for preemployment inquiries: Michigan Civil Rights Commission, “Preemployment Inquiry Guide”.


Minnesota

Does this law apply to private or public employers?

This law applies to both private and public employers.

What are the rules?

Public and private employers may not inquire into the criminal record or criminal history of an applicant until the applicant has been selected for an interview, or until a conditional offer of employment has been made.

What about for licenses?

No one can be disqualified from pursuing or practicing an occupation that requires a license, unless the crime directly relates to the occupation. Agency may consider the nature and seriousness of the crime and its relation to the applicant’s fitness for the occupation. Even if the crime does relate to the occupation, a person who provides evidence of rehabilitation and present fitness cannot be disqualified.

Agency guidelines for preemployment inquiries: Minnesota Department of Human Rights, “Hiring, Job Interviews and the Minnesota Human Rights Act”.


Missouri

Does this law apply to private or public employers?

This law applies only to public employers.

What are the rules?

State agencies are prohibited from asking questions related to an applicant’s criminal history during the initial application stage.


Nebraska

Does this law apply to private or public employers?

This law applies only to public employers. Private employers are not prohibited from inquiring into the criminal history of an applicant.

What are the rules?

Public employers are prohibited from asking applicants about their criminal record during the initial state of an application, or until the public employer has determined the applicant meets the minimum employment qualifications.


Nevada

Does this law apply to private or public employers?

This law applies only to public employers in the state of Nevada. Private employers are not prohibited from inquiring into the criminal history of an applicant.

What are the rules?

Criminal history of an applicant can only be considered after: (1) the final interview is conducted in person; (2) the applicant has been offered a conditional offer of employment; or (3) the applicant has been certified by the administrator.

Agency guidelines for preemployment inquiries: Nevada Equal Rights Commission, “Preemployment Inquiry Guide”.


New Hampshire

Does this law apply to private or public employers?

This law applies to both private and public employers.

What are the rules?

In any application for employment, or license, a person may be questioned about a previous criminal record only in terms such as “Have you ever been arrested for or convicted of a crime that has not been annulled by a court?”

Furthermore, it is unlawful discrimination for an employer to ask about an arrest record, to have a job requirement that applicant have no arrest record, or to use information about arrest record to make a hiring decision, unless it is a business necessity. It is unlawful discrimination to ask about arrest record if it has the purpose or effect of discouraging applicants of a particular racial or national origin group.


New Jersey

Does this law apply to private or public employers?

This law applies to all employers with 15 or more employees.

What are the rules?

Employers with 15 or more employees are prohibited from inquiring about an applicant’s criminal record, including an expunged criminal record during the initial employment application process.

Special situations: There are specific rules for casino employees, longshoremen and related occupations, horse racing, and other gaming industry jobs.


New Mexico

Does this law apply to private or public employers?

This law applies only to public employers. Private employers are not prohibited from inquiring about an applicant’s criminal history.

What are the rules?

Records of arrest not followed by a valid conviction and misdemeanor convictions not involving moral turpitude may not be used in connection with an application for any public employment, license, or other authority.

A regulating agency may consider convictions for felonies and for misdemeanors involving moral turpitude. However, such convictions cannot be an automatic bar to authority to practice in the regulated field.


New York

Does this law apply to private or public employers?

This law applies to employers with 10 or more employees.

What are the rules?

An employer may not inquire into arrests or charges that did not result in conviction, unless the charges are currently pending. Additionally, employers may not deny employment based on conviction unless it relates directly to the job or would be an “unreasonable” risk to property or to public or individual safety.

Agency guidelines for pre-employment inquiries: New York State Division of Human Rights, “Recommendations on Employment Inquiries”.


New York City, New York

New York City’s local law prohibits most employers from asking an applicant about his or her arrest history or criminal record until a conditional offer of employment has been made. This means that employers cannot inquire about the criminal history of an applicant during the interview process. If a conditional offer of employment has been made, the employer may inquire into the applicant’s arrest history or criminal record.

If the employer denies an applicant based on the applicant’s arrest history, the employer must provide a written copy of the inquiry to the applicant.


North Dakota

Does this law apply to private or public employers?

This law applies only to public employers. Private employers are not prohibited from inquiring into the criminal history of applicants.

What are the rules?

Employers may obtain records of convictions or of criminal charges (adults only) occurring in the past three years, provided the information has not been purged or sealed.

Agency guidelines for preemployment inquiries: North Dakota Department of Labor, Human Rights Division, “Employment Applications and Interviews”.


Ohio

Does this law apply to private or public employers?

This law applies only to public employers. Private employers are not prohibited from asking about criminal history.

What are the rules?

Public employers are prohibited from including on any form for application for employment any question concerning the criminal background of the applicant. For records that have been sealed, applicant may respond to inquiries as though the arrest did not occur.


Oklahoma

Does this law apply to private or public employers?

This law applies to public employers. Private employers are not prohibited from inquiring into the criminal history of an applicant.

What are the rules?

All state agencies are prohibited from asking job applicants questions regarding convictions and criminal history, unless a felony conviction would automatically render an applicant not qualified.

The law in Oklahoma does not prevent employers from inquiring of felony convictions during the interview process, and does not prevent employers from conducting background checks into prospective employees.


Oregon

Does this law apply to private or public employers?

This law applies to both private and public employers.

What are the rules?

No employer (public or private) may require an applicant to disclose information about a criminal conviction prior to an initial interview or before a conditional offer of employment has been made.


Pennsylvania

The Pennsylvania Office of Administration passed a Fair-Chance Hiring Policy in May, 2017. The HRP Number is HR-TM001. Link: http://www.oa.pa.gov/Policies/hr/Documents/TM001.pdf

Does this rule apply to public or private employers?

This rule applies only to public employers. Private employers are not prohibited from inquiring into the criminal history of an applicant.

What are the rules?

This policy mandates that state agencies shall remove the criminal history question from the commonwealth’s employment application. The policy does not apply to positions in which a criminal conviction makes an applicant ineligible under law, or to positions involving security of people or property, or law enforcement.

Agency guidelines for preemployment inquiries: Pennsylvania Human Relations Commission.


Rhode Island

Does this law apply to private or public employers?

This law applies to all employers in the state of Rhode Island.

What are the rules?

Employers are prohibited from inquiring whether an applicant has ever been convicted before the first interview. Additionally, employers are prohibited from inquiring whether the applicant has ever been arrested or charged with any crime. Applicants do not have to disclose any information that has been expunged.


South Dakota

Agency guidelines for preemployment inquiries: South Dakota Division of Human Rights, “Preemployment Inquiry Guide” suggests that an employer shouldn’t ask or check into arrests or convictions if they are not substantially related to the job.


Texas

Does this law apply to private or public employers?

This law applies to all employers in the state of Texas.

What are the rules?

For a job expected to pay less than $75,000 they, generally, may not obtain a criminal record older than seven years.


Austin, Texas

Does this law apply to private or public employers?

This law applies to private and public employers within the city of Austin with 15 or more employees.

What are the rules?

The ordinance mandates that any employer with 15 or more employees may not inquire about an applicant’s criminal history on an application, or until a conditional offer of employment has been made.


Tennessee

Does this law apply to private or public employers?

This law applies only to public employers in Tennessee.

 What are the rules?

State employers are prohibited from inquiring about an applicant’s criminal history on an initial application form for employment. An employer may inquire about an applicant’s criminal history after the initial screening of applications.


Utah

Does this law apply to private or public employers?

This law applies only to public employers.

What are the rules?

A public employer may not exclude an applicant from an initial interview because of a past criminal conviction. This can happen if a public employer:

  • Requires an applicant to disclose, on an application, a criminal conviction
  • Requires an applicant to disclose, before an initial interview, a criminal conviction
  • If no interview is conduct, requires an applicant to disclose, before making a conditional offer of employment, a criminal conviction.


Vermont

Does this law apply to private or public employers?

This law applies to all employers in the state of Vermont.

 What are the rules?

Employers are prohibited from asking about criminal record information on an initial employee application form. An employer may inquire about a prospective employee’s criminal history record during an interview or once the prospective employee has been deemed otherwise qualified for the position.


Virginia

Does this law apply to private or public employers

This law applies only to executive branch government agencies

What are the rules?

Employment decisions made by executive branch government agencies shall not be based on an applicant’s criminal history. All executive government agencies are prohibited from asking an applicant about their criminal history on the initial application.

Furthermore, employers may not require an employee or applicant to disclose information about any criminal charge that has been expunged,


Washington

Does this law apply to public or private employers?

This law applies to all employers in the state of Washington.

What are the rules?

The bill prohibits all employers from including any question on any application for employment, inquiring either orally or in writing, about an applicant’s criminal record until after the employer initially determines that the applicant is otherwise qualified for the position.

Agency guidelines for preemployment inquiries: Washington Human Rights Commission’s “Pre-employment Inquiries Guide”


West Virginia

Agency guidelines for preemployment inquiries: Bureau of Employment Programs, “Preemployment Inquiries Technical Assistance Guide”. The state’s website says that employers can only make inquiries about convictions directly related to the job. Consider the nature and recentness of the conviction and evidence of rehabilitation. Include a disclaimer that a conviction is not necessarily a bar to employment.


Wisconsin

Does this law apply to private or public employers?

This law applies to only public employers.

What are the rules?

For someone applying for a position in the civil service, the director may not require an applicant to supply information regarding the conviction record of the applicant, before the applicant has been certified for the position. This law does not prohibit the director from notifying the applicant that a particular conviction record may disqualify them from employment.


Which states have mandated the removal of conviction history questions from job applications for private employers?

Ten of these states have mandated the removal of conviction history questions from job applications for private employers:

  • California
  • Connecticut
  • Hawaii
  • Illinois
  • Massachusetts
  • Minnesota
  • New Jersey
  • Oregon
  • Rhode Island
  • Vermont

Because this is a relatively new campaign, there is still debate as to whether it truly removes the bias associated with hiring individuals with criminal records. Many studies have found that these types of policies do not prevent a bias because employers are still likely to have a bias towards those they believe may have a criminal record. This opens the doors to new issues such as racial discrimination; however, both sides believe that this campaign does more good than harm.

Drug Testing


Can my employer legally require me to take a drug test?

Yes. Federal, state and private employees are all subject to drug testing.

Many federal employees, such as those who handle classified information, those who work in national security, law enforcement officers, employees with duties to protect property, life, health and safety, and even the President are subject to drug testing Executive Order 12,564 (5 U.S.C. %26sect; 7301). The Supreme Court has ruled that while drug testing does infringe on an employee’s privacy, it may be necessary in order to protect the health and safety of others Skinner v. Railway Labor Executives' Assn., 489 U.S. 602 (1989). Most state laws are similar to federal laws and generally maintain the legality of drug testing for state employees.

Many private employers require that their employees undergo drug testing. State and local laws vary in the way that they protect private employees’ privacy. In many states and localities, private employers may test employees for health and safety reasons, to increase productivity in the workplace, or to prevent illegal activities in the workplace that derive from drug-related activity Finkin, Privacy in Employment Law (1995) pg 19.


Can I be tested and fired for marijuana in a state where it's legal?

There are currently no restrictions under the law that limit an employer’s ability to drug test for Marijuana. Additionally, employers in all 50 states do not have to accommodate any employee who is working “under the influence” or using marijuana while on-duty. However, there are some states that require an employer to accommodate off-duty use of marijuana.

The following is a comprehensive list of the states with explicit employee protections, states with no employee protections, states likely providing no employee protections, and states with unclear protections.

States with explicit employee protections
The following eleven states have statutes with explicit language either through anti-discrimination or reasonable accommodation provisions, providing varying levels of employment protection. These laws generally state that an employer cannot fire an employee based on the employee’s status as a medical marijuana cardholder or participation in a marijuana program. However, some states, such as Arizona, Delaware, and Minnesota, explicitly address drug testing and state that a positive drug test alone cannot automatically be a reason to refuse to hire someone or to fire someone. Maine goes one step further and requires employers to stop drug testing job applicants for marijuana use and also prevents employers from firing workers 21 years or older for the use of marijuana outside of the workplace.

  • Arizona
  • Arkansas
  • Connecticut
  • Delaware
  • Illinois
  • Maine
  • Minnesota
  • Nevada
  • New York
  • Pennsylvania
  • Rhode Island

States with no employee protections
The following seven states, either the medical marijuana statute explicitly provides no protections or the statute is silent, and the state has case law that has found no employee protection for off-duty use of marijuana. An example is Ohio’s medical marijuana law, enacted in 2016, which explicitly provides that employers have the right to establish and enforce zero-tolerance drug testing policies. However, California is now pending legislation that will stop employers from discriminating against employees who are medical marijuana patients.

  • California
  • Colorado
  • Michigan
  • Montana
  • Ohio
  • Oregon
  • Washington

States likely providing no employee protections
The following seven states and the District of Columbia have state marijuana laws that are silent regarding an employee’s protections and generally only provide criminal protections.

  • Alaska
  • Hawaii
  • Maryland
  • Massachusetts
  • New Hampshire
  • New Mexico
  • Vermont
  • Washington, D.C.

States with unclear employee protections
The following four states have marijuana laws that are either silent or vague regarding employee protections, and their state regulatory agencies have not provided guidance on employee protections.

  • Florida
  • Louisiana
  • New Jersey
  • North Dakota

Due to the rapidly changing nature of this area of law, and the differences between states, it is best to seek advice from an attorney in your area if you have questions or concerns.


How do I know if marijuana is legal in my state?

The laws surrounding marijuana are changing rapidly, with most states either legalizing it in some form, or considering legislation on the issue. A running list of states and their stance on marijuana can be found on Wikipedia. Be careful to note the differences in state laws. For example, some states have only decriminalized marijuana instead of fully or partially legalizing it. Other state have legalized marijuana, but only for medical usage. Furthermore, there can be many significant but small differences between state laws, and it is best to seek advice from an attorney in your area if you have questions or concerns.


Can I be fired for taking prescription medication under doctor's orders if it shows up on a drug test?

You may be protected by the Americans with Disabilities Act (ADA). Under the ADA, an employer cannot discriminate based on disability. However, if over time the disability no longer exists, if the medication is interfering with your ability to perform essential job functions with reasonable accommodations, or if you are taking the medication illegally, then you can be fired.

For more information on disabilities and the workplace, such as what is considered a disability and what constitutes an essential job function, please visit our disability discrimination page.


I'm applying for a job, and my employer wants to give me a drug test. Is that legal?

Yes. In most cases, an employee seeking first-time employment can be tested as a condition of employment, even if there is no cause or reason to believe that the prospective employee has been taking drugs. The employer, however, must test all incoming employees for drugs and may not single you out for special treatment.

Some states have imposed limitations on pre-employment drug testing. For example, California allows a drug test only after the applicant has received an offer of employment conditioned on passing the test. In other states, employers that drug test are required to provide written notice or indicate in their job postings that testing is required.


My employer has a policy that I can be tested if he/she has reasonable suspicion that I am taking drugs. Is that legal?

Yes. Just like incoming applicants can be tested for drugs, so can existing employees. The only difference is, in most cases, your employer must have reasonable suspicion that you have been taking drugs before you can be tested.


What does having a reasonable suspicion to test for drugs mean?

Reasonable suspicion means that the employer has a legitimate reason, based on logic and facts, to believe that you have been taking drugs, and isn’t just guessing, speculating or discriminating against you. Reasonable suspicion can be different in different circumstances. Examples of reasonable suspicion include but are not limited to:

 Direct observation of drug use or physical symptoms of drug use (slurred speech, uncoordinated movement, etc.)

 Abnormal conduct

 A report from a reliable source that an employee is using drugs

 Evidence that an employee has tampered with his/her drug results

 Erratic behavior while at work or significant deterioration in work performance

 Evidence that the employee has used, possessed, sold, solicited, or transferred drugs while working or at work


Can my employer randomly test me for drugs without having reasonable suspicion?

It depends. Many states require that there must be reasonable suspicion to test an employee, and employers that have not complied with this requirement have been successfully sued. However, state laws vary, and in some states, private employers are permitted to randomly test their employees, even without reasonable suspicion, as long as advance notice is given Finkin, <i>Privacy in Employment Law</i> (1995). Courts have generally held that no suspicion is needed to randomly test current employees in jobs that pose a serious risk of human injury or property damage.


I was involved in an accident, and my employer wants me to undergo a drug test, is that legal?

Yes. Federal law permits employers to test for drugs during accident investigations Executive Order 12,564 (5 U.S.C. %26sect: 7301). Although state laws vary, in most states, it is legal to test employees for drugs following a workplace accident. Because your employer may be held liable for injuries or damage caused as a result of your accident at work, the law allows the employer to drug test you to find out if the accident was a result of your prohibited conduct, thereby protecting the employer from liability. However, employers must establish a “reasonable procedure” that allows for employees to report work related injuries, accidents and illnesses. Under this standard, requirements for post-accident drug or alcohol testing will face scrutiny under OSHA because these types of tests may deter employees from reporting an accident. If OSHA finds that the employer’s drug and alcohol testing policies for post-accident reports deters employees from reporting the accident, the employer will face fines up to $12,471.00 per violation, or $124,712 for willful violations.


I'm involved in a counseling or rehabilitation program for drug use through an employee assistance program (EAP). Can my employer still test me for drugs?

Yes. Even though you are undergoing rehabilitation, your employer still has the right to test you for drugs to make sure that you are complying with the program Executive Order 12,564 (5 U.S.C. %26sect;7301.


How do employers test for drugs?

Urine is the most common specimen used to test for drugs, but blood, breath, or other specimens can be used as well. Hair may also be used to test for drugs. Hair testing is growing in popularity and has been accepted by courts as a permissible way to test for drugs. Drug residue remains in hair for a much longer period of time than it does in urine or blood.


My employer wants me to undergo a drug test and requires that someone watch me while I urinate. Is that legal?

Usually not. Some courts have found it to be an unfair invasion of privacy to watch employees urinate. However, most courts have held that it is reasonable to enforce other safeguards that protect against tampering with urine specimens. Examples include: listening to an employee urinate, the dying of toilet water, requiring employees to wear hospital gowns, and checking the temperature of urine.


If I test positive on a drug test, what kind of action can my employer take?

If you are a federal employee, Executive Order 12,564 requires that action be taken if you test positive for a drug test Executive Order 12,564 (5 U.S.C. %26sect;7301). You will be referred to an employee assistance program (EAP), and you must comply with the program’s rules and cease future drug use, or else you will be subject to termination.

State and private employers have their own policies if you test positive for drugs, and these often include mandatory rehabilitation, firing, or not being hired for the position in the first place. While some employers choose to do so, a private employer is not required to allow you to complete rehabilitation or give you a second chance before firing you for drug use.


Can I refuse to take a drug test?

You can always refuse a drug test. However, as an applicant you may not be hired as a result of not taking the drug test. As an employee, if you are fired because of your refusal to take the test, you may have little recourse. In fact, in some states, you might be denied unemployment benefits if you are fired for refusing to take a drug test.


Can I lose my unemployment benefits for failing a drug test or refusing to take one?

It depends on the state, but generally if the state allows for drug testing they can deny unemployment benefits for a failed or refused drug test. Some states do allow you to get your benefits if you are still unemployed after a set period of time.


I've been called in on short notice and I'm afraid I won't pass the drug test. How long will drugs stay in my system?

The amount of time a drug can be detected in your system varies widely not only between drugs but between people. Some drugs leave the system within a few hours while others can be detected for weeks after entering your system, like THC from marijuana by a frequent user.


I tested positive for marijuana use and my employer wants to fire me, but I know that other employees also tested positive but weren't fired. What can I do?

Although employers are not necessarily required to treat their employees fairly and equally, the failure to do so may subject your employer to a discrimination lawsuit if certain types of employees are treated differently. Check with your state department of labor, or a private attorney, for more information to help you determine whether you may be able to bring a discrimination case. If you are a member of a union, you also may be able to file a grievance over your termination.


I tested positive for drugs but I think the test was inaccurate. Can I challenge the accuracy of the test?

State laws vary as to what action you can take. However, there are some methods of recourse that may help you challenge the results. If you are a member of a union, you may be able to file a grievance over your termination that challenges the accuracy of the test. You may check with your state department of labor, a private attorney, or contact one of the following advocates for help and information:

Wellness Programs in the Workplace


What is a wellness program?

Wellness programs can differ from employer to employer, but generally they consist of some kind of incentive designed to increase the physical and mental health of employees. This can be accomplished through cash rewards, gym membership discounts, preventive health screenings and other measures. The goal behind wellness programs is to promote the health and fitness of employees, thereby saving money on health care costs, increasing productivity and reducing absenteeism in the workplace.


My employer has started a wellness program and is giving incentives, such as bonuses and extra vacation days, to employees who exercise and lose weight. Is it legal for them to do this?

While no one denies the good intentions behind these policies, some are concerned about how such programs may intrude on an employee’s private life, especially with respect to their health status.  If you are subject to a mandatory wellness policy, it is important to ask how your employer or HR department plans to use your personal information. If you think that your information is being misused you may want to consult with a local attorney to determine whether the policy may violate federal or state laws.


What laws cover workplace wellness programs?

Wellness programs must comply with the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act (GINA). These two acts, along with the guidance from the EEOC described below, aid employers so that wellness plans protect employees from discrimination while fulfilling their primary purpose: to promote and improve the health of employees.

The ADA and Title II of GINA are federal laws prohibiting disability and genetic discrimination which require that the primary purpose of wellness programs offered by employers is to promote good health and not to collect health information of an employee or their family that might result in shifting more of the cost of health insurance to the employee.  Wellness programs must be reasonably designed to promote health and prevent disease.  The ADA and GINA prevent employers from obtaining and using an employee’s information regarding their own health conditions or health conditions of their family.  However, as an exception, an employer is able to ask health-related questions and conduct medical examinations if the employer is providing health or genetic services as part of a voluntary wellness program.


Is there anything else protecting my private health information from my employer?

In 2017 the final rule by the U.S. Equal Employment Opportunity Commission (EEOC) on this topic goes into effect. The EEOC rule describes how the ADA and GINA apply to wellness programs offered by employers that request health information from employees and their spouses. The final rule, effective in 2017, aims to safeguard health information by stating that wellness program administrators may disclose information to employers only in aggregate terms.  Under the ADA, employers must give their employees notice of information that will be disclosed to the employer including what information will be collected, with whom it will be shared and for what purpose, what limits there are on disclosure, and the way the information will be kept confidential.  GINA requires notice and consent provisions for the services to be provided to employees and their family.


How will the EEOC’s wellness guidelines work with the American with Disabilities Act (ADA) or Health Insurance Portability and Accountability Act (HIPAA)?

While federal laws such as the ADA or HIPAA exist to protect employees’ privacy, it is unknown how the new EEOC guidelines will impact these laws. Although the rule does not change any exceptions to the confidentiality requirements, and employers are permitted to collect health information on employees, it does state that a covered entity (employer) may only receive information collected by a wellness program in an aggregate form that does not disclose the identity of specific individuals. This protection may not be effective for a small business as the employer still may be able to identify the personal health information of a particular employee.


What types of things can my employer ask me in the wellness program?

With the issuance of new guidance by the EEOC, employers may make disability-related inquiries and require medical examinations as long as the inquiries relate to the job and are a business necessity. Therefore, wellness program may now include medical examinations such as blood pressure screening and cancer detection screening. Under the new rule, these programs may also use medical questionnaires or health risk screenings and biometric screenings to determine the employee’s health risk factors.  Thus, wellness programs may evaluate body weight and cholesterol, blood glucose, and blood pressure levels.


Can I be offered incentives for being involved in the wellness program?

The maximum allowable incentive an employer can offer an employee for participation in a wellness program is 30% of the total cost of employee health coverage. Note that the 30% limit only applies if the wellness program is part of a group health plan, and includes disability-related inquires or requires a medical exam. No incentives are allowed in in return for information about the current or past health status of employees’ children, or in exchange for genetic information of the employee or their family.  The final rule, effective in 2017 will apply to all workplace wellness programs. This may be addressed in future regulations to restrict how an employee may benefit from a family member’s participation.