WORKERS' RIGHTS

Over the past century, federal, state, and local governments have created a body of laws, rules, and regulations to protect the rights of workers. These laws cover many aspects of work. A helpful source of information on the topic is Your Rights in the Workplace by Barbara Kate Repa (Nolo, 2005). Minimum wages and maximum hours, family and medical leave, unemployment benefits, on-the-job safety, protection from discrimination and harassment, the right to unionize, employer testing, and privacy rights are discussed below.

WAGES AND HOURS

Passed in 1938, the Fair Labor Standards Act (FLSA-52 Stat. 1060) is the most important wage and hour law in the United States. It applies to all businesses involved in interstate commerce and establishes rules covering minimum hourly wages, overtime pay, and the work of children. Many states also have statutes that set higher standards than the FLSA. Employers must abide by the more stringent rules.

A federal minimum wage of $0.25 per hour was instituted by the FLSA in 1938. The minimum wage had increased by 400% to $1.25 by the mid-1960s. It doubled again by the late 1970s to $2.65, and grew in small increments during the 1980s and early 1990s to $4.75 by October 1996. The minimum wage was increased to $5.15 per hour on September 1, 1997, and then to $5.85 per hour on July 24, 2007. As reported by the U.S. Department of Labor (DOL) in “Wages: Minimum Wage” (http://www.dol.gov/dol/topic/wages/minimumwage.htm), the minimum wage legislation also set future minimum wage increases, including a rise to $6.55 in July 2008 and an increase to $7.25 per hour in July 2009.

With a few minor exceptions, the FLSA requires that workers earning an hourly wage be paid overtime pay of at least one and one-half times the regular pay rate for all hours worked in a work week after the first forty hours. Employees who customarily and regularly receive tips totaling at least $30 per month can be paid at the lower direct wage of $2.13 if that amount plus the tips will equal at least the federal minimum wage of $5.85.

The FLSA also regulates the work hours and wages of children. Individuals under the age of sixteen may work only under certain conditions. Youths fourteen and fifteen years old may work outside of school hours in various nonmanufacturing, nonmining, nonhazardous jobs. They may work up to three hours on a school day or eight hours on a nonschool day for a total of eighteen hours in a school week and forty hours in a nonschool week. In addition, work must be performed between the hours of 7:00 AM and 7:00 PM, except from June 1 through Labor Day, when evening hours are extended to 9:00 PM.

Employers may pay youth under twenty years of age a minimum wage that is lower than the national rate—$4.25 per hour during their first ninety consecutive calendar days of employment. Full-time students employed in retail or service stores, agriculture, or colleges and universities can be paid at 85% of the national minimum wage, or $4.98 per hour, and are limited to working eight hours in one day or twenty hours in a week when school is in session and forty hours per week when school is not in session. Students at least sixteen years old who are enrolled in vocational education classes can be paid at 75% of minimum wage in jobs related to their course of study.

When the minimum wage increased by seventy cents per hour in July 2007, it was the first minimum wage increase in a decade, the longest time since minimum wage legislation was enacted in 1938 that the wage had not been adjusted for inflation. In Poverty in America: One Nation Pulling Apart (July 2007, http://www.povertyinamerica.psu.edu/2007/07/), Amy K. Glasmeier of Pennsylvania State University argued that the minimum wage would need to increase to at least $9.00 per hour to have a positive impact on the living standards of the nation's lowest-paid workers. According to Glasmeier, the seventy-cent increase merely offset the rising costs of necessities like housing, transportation, and health care. She cited a 2006 Congressional Research Service Report that found that if the minimum wage was linked to the dollar's real purchasing power, it would have reached $9.05 per hour before the minimum wage increase in July 2007. The real purchasing power of the minimum wage in 2007, Glasmeier estimated, was actually at a fifty-year low.

As of January 1, 2008, most states had set minimum wage rates higher than the federal minimum wage. These states included Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, West Virginia, Wisconsin, and the District of Columbia. The 2008 federal minimum wage rate increase matched or exceeded some of these state rates. In “Minimum Wage Laws in the States, January 1, 2008” (December 2007, http://www.dol.gov/esa/minwage/america.htm), the DOL reported that Washington at $8.07 had the highest minimum wage of any state, followed closely by California and Massachusetts, both at $8.00 an hour. A local ordinance in San Francisco set the highest minimum wage standard in the nation at $9.36 per hour, effective January 1, 2008.

FAMILY AND MEDICAL LEAVE

The Family and Medical Leave Act (FMLA), enacted in 1993, gives employees the right to take unpaid leave up to twelve weeks for certain circumstances while protecting their jobs. This leave can be used for an employee's own health situation, for the birth or adoption of a child (either parent), or to care for an immediate family member with a serious health condition.

The most recent survey, conducted by the BLS in 2000, found that 16.5% of all employees had taken a leave for family or medical reasons during the previous eighteen months, about the same percentage as a previous survey had found in 1995. However, the reasons for taking leave under the act had shifted considerably. Although six out of ten employees (61.4%) taking leave in 1995 had done so for their own health, by 2000 that percentage was down to 47.2%. (See Table 8.1.) Instead, higher proportions of employees taking leave were doing so because of maternity or disability (4.6% in 1995 and 7.8% in 2000), to care for a newborn or a newly adopted child or newly placed foster child (14.3% in 1995 and 17.9% in 2000), to care for an ill spouse (3.6% in 1995 and 5.9% in 2000), or to care for an ill parent (7.6% in 1995 and 11.4% in 2000). This shift might reflect a growing awareness in the years since the FMLA passed of the types of leave available under the act.

UNEMPLOYMENT

The Social Security Act of 1935 (49 Stat. 620), which passed during the Great Depression when unprecedented numbers of Americans were out of work, created a federal unemployment compensation system. Shortly afterward the federal government empowered states to create their own unemployment systems, which every state subsequently implemented. Along with meeting minimum federal standards, each state must determine who is eligible for benefits, how much money unemployed workers will receive, and how long the benefits will last. Unemployment insurance benefits are paid entirely by taxes imposed on employers, except in three states (Alaska, New Jersey, and Pennsylvania), where the employees also contribute to the benefits.

Benefits

Unemployment insurance pays benefits to qualified workers who are unemployed and looking for work. The benefit amount is calculated as a percentage of an individual's earnings over a previous period totaling fifty-two weeks. Most states pay a maximum of twenty-six weeks of benefits. People may be disqualified from receiving benefits for various reasons, such as voluntarily leaving work without good cause or being fired for misconduct. Another reason is the refusal of suitable work without good cause. “Good cause” must be connected with the job, rather than with the individual's personal life. Also, with few exceptions, workers are not eligible for benefits if their unemployment is caused by a labor dispute. Therefore, the insured unemployment rate is lower than the total unemployment rate. The insured unemployment rate for the week ending February 23, 2008, was 2.1%; the average number of people receiving benefits each week in the four weeks preceding that date was 2.8 million people, according to the DOL in “Unemployment Insurance Weekly Claims Report” (March 6, 2008, http://workforcesecurity.doleta.gov/press/2008/030608.asp).

ON-THE-JOB SAFETY

In 1970 Congress passed the Occupational Safety and Health Act (P.L. 91-596). This law set up a comprehensive national policy to guarantee workers a safe and healthy workplace. A branch of the DOL, the Occupational Safety and Health Administration (OSHA), enforces this statute. Under the law, employers must furnish employment that is “free from recognized hazards” that are “likely to cause death or serious physical harm.” OSHA has established hundreds of detailed occupational safety and health standards that regulate specific workplace hazards so employers will know what is required of them. Things covered include personal protective equipment, machine protections, structural protections, fire protection, and protection against hazardous materials, such as flammable gases.

Although OSHA has established many required standards, it also issues nonbinding regulations. For example, in April 1998 OSHA recommended that retail outlets, such as convenience stores with a history of crime, use bullet-proof glass or employ at least two clerks at night. It also suggested that such stores keep a minimum amount of cash on hand, use drop safes (a cashier can put money into but cannot take the money out of such a safe) and security cameras, be well lit, and train workers how to behave during an armed robbery.

OSHA also gives workers the right to information about the kinds of hazards to which they are exposed in the workplace. Workers may be entitled to recover damages if they are harmed by unsafe and unhealthy workplace conditions. In certain rare circumstances, workers can walk off the job rather than expose themselves to an imminently dangerous situation.

For young people, workplace safety is covered by FLSA, in addition to the OSHA regulations covering all workers. FLSA prohibits employing minors under age eighteen to work at seventeen hazardous nonfarm jobs. The prohibited jobs include driving a motor vehicle, being an outside helper on a motor vehicle, operating various power-driven machines, and performing roofing operations. Limited exemptions are provided for apprentices and student-learners under specified conditions.

Occupational Injuries, Illnesses, and Fatalities

In 2006, according to statistics published by the BLS (November 8, 2007 http://www.bls.gov/news.release/osh2.t20.htm), the most common type of workplace injury by far was sprains, strains, and tears, with a rate of 51.1 per 10,000 full-time workers. Twelve of every 10,000 full-time workers suffered from cuts, lacerations, and punctures, 11 of every 10,000 suffered from bruises or contusions, and 10 out of every 10,000 suffered from fractures. Less common injuries included burns from heat or chemicals, carpal tunnel syndrome, amputations, and tendonitis. The BLS reported in November 2007 (http://www.bls.gov/news.release/osh2.t11.htm) that fractures and carpal tunnel syndrome required the most days away from work in 2006, at medians of twenty-eight and twenty-seven, respectively.

The industry with the highest number of cases of injury or illness in the workplace in 2006 as reported by the BLS in Workplace Injuries and Illnesses in 2006 (October 16, 2007, http://www.bls.gov/news.release/pdf/osh.pdf) was transportation and warehousing, where the incidence was 6.5 cases per 100 full-time workers. Other industries with high rates of worker injury or illness in 2006 included agriculture, forestry, fishing and hunting, and manufacturing, both with 6 cases per 100 full-time workers, and construction, with 5.9 cases per 100 workers.

In 2006 there were 2.3 cases per 100 workers in private industry of occupational injury or illness that were severe enough to warrant days away from work, job transfer, or job restrictions, as reported by the BLS in Workplace Injuries and Illnesses in 2006. A job transfer or restriction could involve shorter work hours, a temporary job change, or a temporary restriction of job duties. The number of such cases varied by the type of industry and occupation. In 2006 transportation and warehousing had the highest rate of these injuries, at 4.3 per 100 full-time workers; finance and insurance had the lowest rate of these injuries, at approximately 0.4 per 100 full-time workers. (See Figure 8.1.)

According to the BLS in National Census of Fatal Occupational Injuries in 2006 (August 9, 2007, http://www.bls.gov/news.release/pdf/cfoi.pdf) there were 5,703 fatal injuries in the workplace in 2006, down slightly from the 5,734 fatalities recorded in 2005. This was a rate of 3.9 fatalities per 100,000 workers.

The most common fatal work-related event in 2006 was a fatal highway incident; in 2006, 1,329 workers died in highway incidents, accounting for almost one in four fatal work injuries. (See Figure 8.2.) However, these fatalities were down 7.5% in 2006 from the year before. Falls accounted for 809 fatalities, up 5% from 770 in 2005. Being struck by an object accounted for 583 fatalities, while homicides accounted for 516 fatalities. Both of these fatal events were down from the previous year.

Occupations with the ten highest fatality rates in 2006 are shown in Figure 8.3. Fishers and fishing workers had the highest work-related fatality rate, at 141.7 per 100,000 workers. Aircraft pilots and flight engineers (87.8 per 100,000 workers), logging workers (82.1 per 100,000 workers), and structural iron and steel workers (61 per 100,000 workers) also had very high fatality rates. The top ten most dangerous occupations also included refuse and recyclable material collectors (41.8 per 100,000 workers), farmers and ranchers (37.1 per 100,000 workers), electrical power-line installers and repairers (34.9 per 100,000 workers), roofers (33.9 per 100,000 workers), drivers and truck drivers (27.1 per 100,000 workers), and other agricultural workers (21.7 per 100,000 workers).

COMPENSATION FOR WORK-RELATED INJURIES AND ILLNESSES. If a person is injured on the job or becomes ill because of the work environment, he or she will likely come in contact with the workers' compensation program, which is familiarly known as “workers' comp.” Workers' comp is an insurance program that pays compensation to injured workers for their lost wage-earning capability. It also pays workers' medical and rehabilitation expenses and provides benefits for dependents of workers who are killed on the job.

This program is financed primarily by insurance premiums paid by employers. Both workers and employers benefit from this program. Workers receive compensation in the event they are injured and unable to work. Employers benefit because the program makes the costs of workers' compensation a predictable business expense that can be included in production costs. Each state administers its own workers' comp program.

For workers' comp to apply, there must be an “injury by accident.” Generally, the accident must occur when the person is working. The injured worker and the workers' comp insurance company, or state insurance fund, try to reach a settlement. If they cannot, there is an appeal process. Many states have a payment schedule that specifies definite amounts for particular injuries. In most cases, workers' comp will pay a worker a weekly amount equal to a percentage of his or her average weekly pay, up to a maximum set by law.

Workplace Crime

In 2005 more than nine out of ten of all workplaces (92.1%) reported there were no violent incidents during the previous year. (See Table 8.2.) However, 5.3% of all workplaces did experience at least one incident of workplace violence in the twelve months prior to the survey. The largest workplaces were particularly at risk; half of all workplaces with a thousand employees or more (49.9%) had experienced some workplace violence during the past year. The largest establishments in private industry reported higher percentages of coworker violence (33.1%) compared with customer or client violence (24.2%) and incidents involving domestic violence (24.1%). However, in large government workplaces, customer or client violence was most frequently reported (38%), followed by coworker violence (27.1%) and incidents involving domestic violence (19.2%).

Nearly three-quarters of American workplaces (72.1%) have at least one form of security in place. (See Table 8.3.) Types of security include electronic surveillance systems (burglar alarms, surveillance cameras, and motion detectors), physical security (secured entries and locked doors), and security staff. However, security measures are almost universal in the largest workplaces (99% have at least one form of security in place), which are at greatest risk for violence. Nine out of ten of these large establishments (90.6%) had physical security in place along with either an electronic surveillance system or security staff.

DISCRIMINATION AND HARASSMENT

Federal law prohibits employers from discriminating against employees or prospective employees on the basis of sex, race, religion, national origin, or disability. Furthermore, employers are required to ensure that workers are not subjected to sexual harassment.

Discrimination

There are many national laws protecting employees from discrimination in the workplace with respect to hiring, compensation, terms, conditions, and privileges of employment. These laws cover employees in all types of businesses, from very large to very small. They also apply to employment agencies and labor organizations. State and local laws extend the coverage of the federal statutes in different ways. Some state laws extend federal protections to employers who are not covered by those statutes because of their small size, for example. Other states protect against discrimination based on factors not covered by federal law, such as sexual preference.

Although sometimes discrimination complaints are filed with the Equal Employment Opportunity Commission (EEOC), many other incidents of workplace discrimination in the workplace are never brought to the attention of the EEOC. Instead, as described in the Level Playing Field Institute survey The Cost of Employee Turnover Due Solely to Unfairness in the Workplace (2006, http://www.lpfi.org/docs/cl-executive-summary.pdf), victims suffer silently or leave their places of employment.

GENDER DISCRIMINATION. The Equal Pay Act of 1963 (P.L. 88-38) establishes that employers cannot pay lower wages to an employee based on gender. Equal pay must be paid to workers for equal work if the jobs they perform require “equal skill, effort, and responsibility and are performed under similar working conditions.”

In fiscal year (FY) 2007, 24,826 cases were filed with the EEOC alleging sex-based discrimination, as reported in Enforcement Statistics and Litigation (February 26, 2008, http://www.eeoc.gov/stats/sex.html). That same year, the EEOC resolved 21,982 charges. Of those, 2,900 (13.2%) were settled, with payments totaling $135.4 million to the charging parties. The percent of cases settled was up substantially since 1997, when only 4.1% were settled. In 2007 another 1,299 (5.9%) of the claims were found to have reasonable cause; 439 (2%) of these were charges with reasonable cause closed after successful conciliation, and 860 (3.9%) of them were charges with reasonable cause closed after unsuccessful conciliation. Another 1,443 cases (6.6%) were withdrawn by the charging party on receipt of desired benefits (“withdrawals with benefits”). In other words, in FY 2007 over 4,600 cases of discrimination based on gender were found to have reasonable cause or were settled or withdrawn after the employer admitted culpability and submitted to a monetary settlement.

RACIAL DISCRIMINATION. The Civil Rights Act of 1964 (P.L. 88–352) makes it unlawful for an employer to discriminate against individuals on the basis of race, color, religion, national origin, or sex. This law was amended in 1978 (P.L. 95–555), making it unlawful for an employer to discriminate on the basis of pregnancy, childbirth, or a related medical condition. This law not only applies to hiring but also to promotion and termination. In 1997 the Supreme Court ruled in Robinson v. Shell Oil Company (No. 95–1376) that the Civil Rights Act of 1964 protected workers from retaliation for filing complaints about discrimination on the job. This ruling included forbidding retaliation in the form of a bad job recommendation after the worker is no longer employed.

In FY 2007 the EEOC received 30,510 charges alleging race-based discrimination. (See Table 8.4.) That same year the EEOC resolved 25,882 charges. Of those, 2,945 (11.4%) were settled, up from only 3.3% in FY 1997, with payments totaling $67.7 million to the charging parties. Another 998 (3.9%) of the claims were found to have reasonable cause; 285 (1.1%) of these were charges with reasonable cause closed after successful conciliation and 713 (2.8%) of them were charges with reasonable cause closed after unsuccessful conciliation. Another 1,235 cases (4.8%) were withdrawn by the charging party on receipt of desired benefits (“withdrawals with benefits”). Therefore, in FY 2007 nearly 3,200 cases of racial discrimination were found to have reasonable cause or were settled or withdrawn with benefits.

AGE DISCRIMINATION. The Age Discrimination in Employment Act of 1967 (P.L. 90-202) makes it unlawful for an employer to discriminate against individuals aged forty or older with respect to hiring, compensation, and employment on the basis of age.

In fiscal year 2007 the EEOC received 19,103 charges alleging age-based discrimination. (See Table 8.5.) That same year the EEOC resolved 16,134 charges. Of those, 1,795 (11.1%) were settled, a percentage that had risen gradually for ten years. Payments totaled $66.8 million to the charging parties. Another 625 (3.9%) of the claims were found to have reasonable cause; 186 (1.2%) of these were charges with reasonable cause closed after successful conciliation, and 439 (2.7%) of them were charges with reasonable cause closed after unsuccessful conciliation. Another 958 cases (5.9%) were withdrawn by the charging party on receipt of desired benefits (“withdrawals with benefits”). Nearly 3,400 cases of age discrimination were found to have reasonable cause or were settled or withdrawn with benefits in FY 2007.

DISCRIMINATION AGAINST PEOPLE WITH DISABILITIES. The Americans with Disabilities Act of 1990 (ADA; P.L. 101-336) makes it unlawful for an employer to discriminate in hiring, compensating, or employing individuals with disabilities. This law applies to companies that have fifteen or more employees. The law requires reasonable accommodation for disabled applicants and employees. For example, if an employee cannot fit his or her wheelchair through the entrance to the workplace, the employer may be required to alter that entrance or provide a different work area. The ADA affected approximately fifty million Americans in 2008, according to the ADA Web site (http://www.ada.gov/).

In fiscal year 2007 the EEOC received 17,734 charges alleging discrimination based on disability. (See Table 8.6.) That same year the EEOC resolved 15,708 charges. Of those, 2,037 (13%) were settled, and payments totaled $54.4 million to the charging parties. Another 837 (5.3%) of the claims were found to have reasonable cause; 322 (2%) of these were charges with reasonable cause closed after successful conciliation, and 515 (3.3%) of them were charges with reasonable cause closed after unsuccessful conciliation. Another 1,005 cases (6.4%) were withdrawn by the charging party on receipt of desired benefits (“with-

drawals with benefits”). Nearly 3,900 cases of discrimination based on disability were found to have reasonable cause or were settled or withdrawn with benefits in FY 2007.

In November 1999 Congress supplemented the provisions of the ADA with the Ticket to Work and Work Incentives Improvement Act (TWWIIA) to give Americans with disabilities both the incentive and the means to seek employment. In part this provides assurance to disabled workers that they will not lose their medical insurance if their income or savings exceed certain levels.

Sexual Harassment

Workers have the right to be free from sexual harassment—unwelcome sexual advances or conduct—from supervisors and coworkers, as well as from customers and clients. There are two main forms of sexual harassment. One is demanding sexual favors in return for job benefits over which the individual has some control, such as promotions. This is known as quid pro quo sexual harassment. Another type is “hostile work environment” sexual harassment. When individuals use obscene language, post lewd pictures, make unwelcome sexual advances, or talk about sex in an offensive manner, they are creating a hostile work environment.

Sexual harassment is a violation of the 1964 Civil Rights Act, as amended in 1972 (P.L. 92–261). Under the Civil Rights Act of 1991 (P.L. 102–166), victims of sexual harassment are entitled to damages for pain and suffering, as well as to any lost pay resulting from the harassment. The EEOC defines sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.

In fiscal year 2007 the EEOC received 12,510 charges alleging sexual harassment; 84% of them were from women. (See Table 8.7.) That same year the EEOC resolved 11,592 charges. Of those, 1,571 (13.6%) were settled. Payments totaled $49.9 million to the charging parties. Another 767 (6.6%) of the claims were found to have reasonable cause; 282 (2.4%) of these were charges with reasonable cause closed after successful conciliation, and 485 (4.2%) of them were charges with reasonable cause closed after unsuccessful conciliation. Another 1,177 cases (10.2%) were withdrawn by the charging party on receipt of desired benefits (“withdrawals with benefits”). Over 3,500 cases of sexual harassment brought before the EEOC or state or local Fair Employment Practices agencies were found to have reasonable cause or were settled or withdrawn with benefits in FY 2007.

THE RIGHT TO JOIN A UNION

The National Labor Relations Act of 1935 (49 Stat. 449) guarantees nonsupervisory employees the right to organize a union, to choose their own representatives, and to bargain collectively with their employer for higher pay, better benefits, improved working conditions, and more relaxed work rules. Workers have the right to join a union if one exists or to help organize one if one does not exist. The law prohibits employers from punishing employees who exercise their right to join a union and participate in union activities. Workers in a company who want to form a union must ask a federal or state agency, such as the National Labor Relations Board, to hold an election to determine if a majority of workers want to be represented by a union.

In certain organizations workers may be required to join a union after they are hired; such workplaces are called union shops. Twenty-two states have enacted right-to-work laws that prohibit union shops, and most are located in the South and Midwest. A list of right-to-work states compiled by the DOL as of January 2008 (http://www.dol.gov/esa/programs/whd/state/righttowork.htm) included: Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Iowa, Kansas, Louisiana, Mississippi, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wyoming. This means that to get or hold a job in these states, workers do not have to join a union if one exists. Closed shops, in which only union members in good standing can be hired, were outlawed by the Taft-Hartley Act in 1947.

By law all workers in a bargaining unit are entitled to the benefits gained through union collective bargaining, whether they are union members or not. Nonunion workers employed by a unionized company get the same benefits as union members, even if they do not join the union.

Although unions historically developed in order to represent the interests of the working class, they also have a growing presence in professional specialties. The Union of American Physicians and Dentists was formed in California in 1972 and by 2008 totaled 3,000 members. Their initiative to organize was driven partly by policies that made it possible for patients to sue for malpractice under state laws, but their efforts also provide doctors with representation in contract negotiations and in disputes with such entities as hospital administrations, HMOs, insurance companies, and medical boards.

EMPLOYER TESTING

Employers may administer various tests to potential or current employees in order to determine their fitness to perform the duties of a position. For example, as testing technologies improved and became widely available during the 1980s and '90s, many companies introduced testing for the use of drugs or began administering polygraph (lie detector) exams and psychological tests.

Drug and Alcohol Testing

Growing concern over the impact of drug and alcohol abuse in the workplace has led to an increase in the number of employers who test for drug and alcohol abuse. These tests are performed on employees and, increasingly, on job applicants. Workers in some jobs, such as airline pilots, are required by law to submit to drug and alcohol testing, but an increasing number of employers are requiring employees to submit to testing as a condition of employment.

Some programs use mandatory and random testing. Others test only on the basis of reasonable suspicion. Workers in jobs that are particularly related to safety or security concerns are more likely to be tested. The Omnibus Transportation Employee Testing Act of 1991 requires certain employers to have drug-free workplace programs that include drug and alcohol testing of workers in “safety-sensitive” positions, such as those who operate airplanes, buses, and large trucks.

What happens to job applicants or employees who refuse to take drug tests? That depends on where they work and any applicable state law. In many cases refusal to take the test is grounds for not getting a job or being fired.

If a job applicant takes the test and tests positive, he or she may not get the job. If a worker tests positive on a random drug test, treatment and counseling sponsored by the company may be given or employment may be terminated.

These tests have led to controversy throughout the country because many people think the tests invade personal privacy. By 2006 some states (California, Florida, Georgia, Illinois, and South Carolina) required state contractors to have drug-free workplace programs in place. Another twenty states, however, regulated drug-testing procedures to protect the rights of employees. Some states ban or restrict random drug testing, while others required that a second, confirmatory drug test be given if the first one was positive. Some states required that the results of these tests be kept confidential, while others limited the type of discipline employers can mete out to employees who fail drug tests. The National Conference of State Legislatures provides comparative information on state drug-testing laws online in “State Statute Chart on Drug Testing in the Workplace” (January 2006, http://www.ncsl.org/programs/employ/drugtest.htm).

Polygraph Exams

At one time it was popular among many employers to use polygraph tests on their employees. Workers often resented these tests, and their aversion eventually led a number of states to pass laws limiting their use. In 1988 Congress passed the Employee Polygraph Protection Act (P.L. 100–347), which prohibits most private employers from using lie detector tests either for pre-employment screening or during the course of employment. In most circumstances employers are prohibited from requiring or requesting any employee or job applicant to take a lie detector test. Employers are also prevented from discharging, disciplining, or discriminating against an employee or prospective employee for refusing to take a test or for exercising other rights under this act.

Still, many employers may administer these tests. Federal, state, and local governments are exempt from the Employee Polygraph Protection Act, and the law does not apply to tests given by the federal government to certain private individuals engaged in national security-related activities. Furthermore, the act permits polygraph tests to be administered in the private sector to certain prospective employees of security service firms and pharmaceutical manufacturers, distributors, and dispensers.

The act also permits polygraph testing of certain employees who are reasonably suspected of involvement in a workplace incident, such as theft or embezzlement, that resulted in economic loss to the employer. Some restrictions may apply in these cases, and state or local law or collective bargaining agreements may be more restrictive.

Where polygraph tests are permitted, they are subject to numerous strict standards concerning the conduct and length of the test. People who take polygraph tests have a number of specific rights, including the right to a written notice before testing, the right to refuse or discontinue a test, and the right not to have test results disclosed to unauthorized individuals.

In cases where employers cannot legally administer polygraph testing, they may instead be able to administer what is known as honesty testing. This form of testing is typically a written true or false test that offers choices of alternatives of behavior in given circumstances. There are no wrong answers, but evaluators believe they can use the results to determine patterns of behavior and, therefore, predict who is at high risk for dishonest behavior. Honesty testing has opponents, including some labor unions and others that are concerned about where to draw the line regarding privacy. On the other hand, such methods sustain interest from employers, who wish to make the best hiring decisions and minimize, in some cases, company theft. Employers may also request information such as applicants' credit reports or criminal records.

Psychological Testing

Concerned about the high costs and legal problems that can result from hiring the wrong person for the job, some employers administer psychological tests to prospective employees and to employees who are under consideration for promotions. According to David W. Arnold and Alan J. Thiemann of the Association of Personnel Test Publishers in “To Test or Not to Test: The Status of Psychological Testing under the ADA” (1992, http://eric.ed.gov/ERIC-Docs/data/ericdocs2sql/content_storage_01/0000019b/80/13/57/7b.pdf), these tests do not violate requirements of the ADA if they are used only to assess personality traits, behavior, or attitudes and are not designed to uncover a mental or psychological disorder. For instance, employers may administer personality tests to determine a prospective employee's suitability for a particular job, especially when the job is a sensitive position in the public trust, such as a police officer or firefighter.

In “Employment Tests and Selection Procedures” (February 2008, http://www.eeoc.gov/policy/docs/factemployment_procedures.html) the EEOC warns employers wishing to use psychological testing that these tests should be administered without regard to race, ethnicity, sex, religion, age, or disability; that the tests should be used for very specific, job-related results; and that employers and managers should not use psychological testing casually—the effectiveness and limitations of specific tests should be thoroughly understood and appreciated before they are administered or scored.

PRIVACY RIGHTS

Employees whose jobs involve computers, telephones, and other communications equipment are guaranteed few rights to privacy while at work. The Electronic Communications Privacy Act of 1986 (ECPA), which prohibits the intentional interception of electronic communications, nevertheless allows employers to monitor their workers while on the job. In Fraser v. Nationwide Mutual Insurance Co. (3rd Cir. 2003), the court ruled that a company is permitted to review e-mail stored on its own computers. In the court's opinion, the ECPA outlawed interception of communications, but stored e-mails were exempt and could be legally reviewed by employers. According to the Privacy Rights Clearinghouse in “Fact Sheet 18: Online Privacy” (April 2008, http://www.privacyrights.org/fs/fs18-cyb.htm), “If the e-mail system is owned by an employer, the employer may inspect the contents of employee e-mail on the system. Therefore, any e-mail sent from a business location is probably not private.”

In fact, according to the American Management Association and the ePolicy Institute in 2007 Electronic Monitoring & Surveillance Survey (February 28, 2008, http://press.amanet.org/press-releases/177/2007-electronic-monitoring-surveillance-survey/), many companies are now monitoring, recording, and videotaping their employees. Two-thirds of all surveyed employers (66%) monitored employees' Internet connections, and 65% of the companies reported using software to block inappropriate sites. Nearly half (43%) of the companies had systems in place to store employees' computer files and e-mail for subsequent review, while 45% tracked content, keystrokes, and time spent at the keyboard. According to the survey, more than a quarter (28%) of all employers had fired workers for misusing e-mail, including inappropriate or offensive language or excessive personal use. Almost one-third (30%) had fired employees for misusing the Internet, including viewing inappropriate or offensive content or excessive personal use.

Compared with the rates of surveillance for Internet use, companies monitored employees' phone use to a much lesser extent. Only 6% of companies in the 2007 Electronic Monitoring & Surveillance Survey confirmed that they had fired employees for misusing the telephone, although 45% monitored time spent on the phone and the numbers called, and 16% recorded some or all employees' phone conversations. As of 2007, with few federal or state statutes addressing worker privacy, many companies were adopting policies that informed workers their communications and on-the-job activities would be monitored and that they should have no expectation of privacy while at work.