Employment Law And Data Privacy – How Much Employee Information Can An Employer Access?

Privacy laws focus on the rights and protections employees have with respect to information they share with their employers or access in the workplace. Because there is no comprehensive federal privacy statute governing employee data, states have enacted a patchwork of laws addressing the collection, use, and protection of employees’ personally identifiable information (PII). Pennsylvania is among those states and has developed its own framework governing employee privacy rights. Key Pennsylvania laws include:

1. Pennsylvania Inspection of Employment Records Law (43 P.S. §§ 1321-1324). This law gives employees the right to review employer-maintained records that contain information about them. Covered records generally include personnel files used to determine qualification for employment-related decisions such as hiring, promotion, additional compensation, termination, and disciplinary action. The statute applies to employers with five or more employees and permits employers to adopt reasonable procedures governing access, including written request requirements and reasonable time limitations. Importantly, the law excludes certain categories of records from inspection, including letters of reference, documents relating to criminal investigations, medical records, and trade secrets or confidential information.
2. Pennsylvania Wiretapping and Electronic Surveillance Control Act (18 Pa. C.S.A. §§ 5701- 5782). Pennsylvania is a two-party (all-party) consent state. This law generally prohibits the interception, disclosure, or use of wire, electronic, or oral communication unless all parties to the communication have provided prior consent. In the workplace, this can affect employer monitoring of telephone calls, emails, and other electronic communications. Monitoring may be permissible where all parties have provided knowing and voluntary consent, or if a statutory exception applies. For example, customer service calls may be monitored when participants receive notice that the call may be recorded for training or quality control purposes. Because Pennsylvania courts scrutinize whether consent was valid and informed, employers should ensure that workplace monitoring policies are clearly communicated and consistently implemented.
3. Breach of Personal Information Notification Act (73 P.S. §§ 2301- 2330). This law requires entities that conduct business in Pennsylvania and maintain certain categories of personal information to provide notice following a data breach. The law applies when unencrypted and unredacted personal information, such as an individual’s name combined with a Social Security number, driver’s license number, or financial account number with access credentials, is accessed and acquired by an unauthorized person. Notice must be provided “without unreasonable delay.” In addition to statutory obligations, Pennsylvania courts have recognized that employers have a duty to exercise reasonable care in safeguarding employees’ personal information. Pennsylvania courts often evaluate workplace privacy issues under a “reasonable expectation of privacy” standard. Although many statutes and common law doctrines protect employee privacy interests, employer ownership of workplace systems and clearly communicated policies can significantly limit an employee’s expectation of privacy. For that reason, carefully drafted policies regarding electronic communications, data access, and monitoring are critical.

Employer data privacy obligations continue to evolve as new forms of PII (such as biometric information) become more common and as additional methods of collecting PII (such as through social media or other off-duty activity) gain traction. Employers should regularly review their policies, data security practices, and monitoring procedures to ensure continued compliance with applicable laws.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.