Your Rights to Workplace Privacy in Rhode Island

Your Rights to

Workplace

Privacy in

Rhode Island

4th Edition

A Handbook Published by the

American Civil Liberties Union

Foundation of Rhode Island

Your Rights to Workplace Privacy in

Rhode Island

4th Edition

TABLE OF CONTENTS

Introduction 1

Being Questioned for a Job 2

Drug Testing 5

Honesty and Personality Testing 8

Searches and Surveillance 10

Criminal Record Checks 15

Personal Lifestyle and Off-Duty Activities 17

Medical Privacy 22

Miscellaneous Privacy Issues 24

“Blowing the Whistle” 26

Endnotes 28

The American Civil Liberties Union Foundation of Rhode Island is a

private, non-profit organization dedicated to preserving and protecting

the civil liberties guarantees found in the Bill of Rights.

While the ACLU, as a general rule, only deals with civil liberties com-

plaints against the government, it has had a longstanding interest in

issues relating to privacy in the workplace in both the public and the

private sector.

Cartoon in the Table of Contents by Clay Bennett,

St. Petersburg Times

Reprinted with permission

American Civil Liberties Union Foundation of Rhode Island

128 Dorrance Street, Suite 220

Providence, RI 02903

www.riaclu.org

port wrongdoing in the course of their official duties, as op-

posed to their capacity as a private citizen. Garcetti v. Ce-

ballos, 547 U.S. 410 (2006). Thus, whether the First

Amendment (as opposed to state and federal statutes) pro-

vides protection from retaliation in any particular instance

will depend on an analysis of the employee’s official duties.

See, e.g., Decotiis v. Whitemore, 635 F.2d 22 (1st Cir.

2011). At least one court has held that, notwithstanding

Garcetti, an employee’s work-related testimony in legal pro-

ceedings remains protected by the First Amendment. Reilly

v. Atlantic City, 532 F.3d 216 (3rd Cir. 2008).

Introduction

The workplace is where most adults spend roughly half their waking

hours. Further, in the interests of maintaining a productive workforce,

some employers not only regulate employees’ work behavior, but seek

to extend their supervisory control to off-duty activities as well. It is

thus not surprising that employees are subjected to employment prac-

tices that affect their privacy rights in many different ways.

Questions of workplace privacy encompass a wide range of practices –

including drug testing, telephone monitoring, video surveillance and

interference with personal lifestyle. The use of privacy-invasive tech-

niques has increased as technological advances make it more practical

and economical for employers to monitor and test their workforce.

Fortunately, there are some important limits on employers’ actions in

this regard, due in part to a variety of state laws that the Rhode Island

General Assembly has passed to protect employees’ privacy rights.

This booklet is designed to provide some answers to basic questions

about those rights.

The reader should keep in mind a few points in using this book as a

reference guide. First, as the result of court decisions, the passage of

new statutes and the ever-increasing march of technology in the work-

place, the law in this area is constantly changing. Therefore, the infor-

mation provided here should not be taken as the last word on the sub-

ject, but instead as an introduction to workplace privacy rights in

Rhode Island. Further, a booklet like this cannot serve as a substitute

for consulting with an attorney.

Second, it is important to realize that the extent of your rights can de-

pend greatly upon whom you work for or whether you belong to a un-

ion. Many employees in the private sector mistakenly believe that the

Constitution protects their rights in the workplace.

In fact, the Constitution provides protection only against government

agencies, not private entities. Thus, only people working for the gov-

ernment enjoy certain constitutional rights in the employment setting.

The rights of private sector employees depend almost exclusively on

protections provided by their union, state and federal statutes, or an

employment contract. As a general rule, then, your rights in the work-

place can have up to three different levels of protection. Employees in

the private sector who do not have a union or employment contract

generally have the least protection, and must rely mainly on any state

and federal laws governing workplace privacy. Private employees with

a union can rely on their union and its contract for possible

additional protections.

Finally, government employees may

further be able to advance constitutional claims for viola-

tions of their privacy.

Again, because of the changing na-

ture of this area of the law, employees who feel their priva-

cy rights may have been violated are encouraged to contact

their union, an attorney or the ACLU for information about

their rights.

Being Questioned for a Job

Q. Are there any limits on the types of questions I can be

asked when I apply for a job?

A. Yes. Rhode Island’s Fair Employment Practices Act

(FEPA) makes it illegal for an employer to use any applica-

tion form or otherwise attempt to find out information, di-

rectly or indirectly, about your race or color, religion, sex,

disability, sexual orientation, gender identity or expression,

age or country of ancestral origin.

In addition to prevent-

ing discrimination, this law helps protect your privacy and

your ability to maintain the confidentiality of personal infor-

mation that should be irrelevant to the employment applica-

tion process. Thus, as a general rule, questions that ask you

to denote your gender, race, birth date, whether you have a

disability or have ever been treated for mental illness, and

comparable types of inquiries are all illegal.

Some employers may ask job applicants to sign a consent

form giving the employer unrestricted access to medical,

school, employment and/or criminal records that pertain to

the applicant. Such blanket consent forms are probably ille-

gal, since access to these records would elicit details about

an applicant’s age, arrest record, physical or mental disabili-

ties, etc. that the employer may not be entitled to have.

Q. Can an employer ask about my medical condition when

I apply for a job?

A. Not initially. As noted above, state law prohibits inquir-

ies that will elicit information about an applicant’s mental

115. R.I.G.L. §28-6.9-1.

116. The advisory letter is available online at http://www.eeoc.gov/

eeoc/foia/letters/2010/titlevii-employer-creditck.html.

117. Sections 604, 606 and 615 of the Fair Credit Reporting Act

(FCRA) spell out these obligations. The law is codified at 15 U.S.C. §

1681 et seq.

118. “EEOC Compliance Manual: National Origin Discrimination,”

Number 915.003, Equal Employment Opportunity Commission, De-

cember 2, 2002. Available online at: http://www.eeoc.gov/policy/docs/

national-origin.html.

119. Compare Garcia v. Spun Steak Co., 998 F.2d 1480 (9th Cir.

1993), reh’g en banc denied, 13 F.3d 296 (9th Cir. 1993), cert. denied,

114 S.Ct. 2726 (1994) (upholding English-only policy) with EEOC v.

Premier Operator Services, Inc., 113 F. Supp. 1066 (N.D. Tex. 2000)

and EEOC v. Synchro-Start Products, Inc., 29 F. Supp. 2d 911 (N.D.

Ill. 1999)(striking down English-only policies).

120. R.I.G.L. §23-13.2-1. The federal law was enacted in 2010 as part

of the broad health care reform act, Pub. L. 111-148, §4207.

121. R.I.G.L. §28-6.4-1.

122. 5 U.S.C. §552a.

123. Rule 8.02(C). The state personnel regulations are available online

at http://www.diversity.ri.gov/personnel/personnel2.html.

124. R.I.G.L. §12-28-10.

125. R.I.G.L. §28-50-1 et seq.

126. R.I.G.L. §28-50-5.

127. See, e.g., R.I.G.L. §28-5-7(5); 42 U.S.C. § 2000e-3(a). Numerous

federal laws, such as the Fair Labor Standards Act, 29 U.S.C. §215(a)

(3), the National Labor Relations Act, 29 U.S.C. §158(a)(4), and the

Occupational Safety and Health Act, 29 U.S.C. §660(c), also contain

broad prohibitions against employee retaliation for reporting violations

of the protections contained in those laws.

128. As the result of a 2006 U.S. Supreme Court decision, a govern-

ment employee’s ability to challenge retaliatory conduct on First

Amendment grounds has been greatly limited. In that case, the Court

held that the Constitution does not protect public employees who re-

95. R.I.G.L. §28-48-1 et seq.

96. R.I.G.L. §28-48-6 and §28-48-7.

97. 29 U.S.C. §2601 et seq.

98. R.I.G.L. §23-6.3-11.

99. 29 C.F.R. §§1630.13, 1630.14.

100. Matson v. Board of Education of the City School Dis-

trict of New York, 631 F.3d 57 (2nd Cir. 2011).

101. R.I.G.L. §5-37.3-1 et seq.

102. Washburn v. Rite Aid Corp., 695 A.2d 495 (R.I. 1997).

103. R.I.G.L. §5-37.3-9.

104. R.I.G.L. §5-37.3-4.

105. R.I.G.L. §28-6.7-1.

106. R.I.G.L. §28-6.7-3.

107. Public Law 110-233.

108. 42 U.S.C. §12114. Rhode Island’s Fair Employment

Practices Act provides similar protection, as it generally in-

corporates the ADA’s definitions of disability.

109. R.I.G.L. §21-28.6-4(b).

110. R.I.G.L. §21-28.6-7(b)(2).

111. R.I.G.L. §28-6.8-1.

112. R.I.G.L. §28-6.8-2.

113. “EEOC Enforcement Guidance: Disability Related In-

quiries and Medical Examinations of Employees Under the

Americans with Disabilities Act,” No. 915.002, Equal Em-

ployment Opportunity Commission, July 27, 2000. Availa-

ble online at http://www.eeoc.gov/policy/docs/guidance-

inquiries.html.

114. See, e.g., EEOC Opinion letter dated June 24, 2011,

“ADA and GINA: Incentives for Workplace Wellness Pro-

grams.” Available online at: http://

www.employmentlawmatters.net/uploads/file/Wellness%

20programs-EEOC%20Opinion%20Letter-6-24-11.pdf.

or physical disabilities, and medical questions generally perform that

illegal function. In addition, a federal law known as the Americans

with Disabilities Act (ADA),

which applies to all businesses with 15

or more employees, provides broad-based protection against questions

in the employment process that relate to an applicant’s disabilities. The

ADA specifically bans all pre-employment questions relating to medi-

cal conditions and disabilities until a conditional offer of employment

is made.

It is only after an employment offer has been made that an employer

may require an applicant to undergo a medical examination or respond

to medical inquiries. If an employer requires an examination at this

stage, it must be required of all applicants for a particular job category,

not just of selected applicants.

Significantly, while the final offer of employment may be conditioned

on the results of those tests, the offer can be withdrawn only if the

medical results indicate that the applicant is no longer qualified to per-

form the job even if he or she were given reasonable accommodation.

After employment begins, an employer may make disability-related

inquiries and require medical examinations, but only if they are job-

related and consistent with business necessity.

Q. Can I be asked whether I have ever filed for workers’ compensa-

tion?

A. No. Like other questions that would elicit information about a per-

son’s disabilities, the ADA forbids employers from inquiring into their

applicants’ history of filing workers’ compensation claims or seeking

information about past job-related injuries until after a conditional of-

fer of employment has been made.

Q. Can I be asked about my arrest record?

A. No. The state FEPA specifically bars an employer from asking

whether an applicant has ever been charged with or arrested for a

crime.

The only exception is for law enforcement agency positions

“or positions related” to such agencies. The law does not, however,

prevent employers from inquiring about any convictions a job appli-

cant may have.

Q. May my prospective employer ask me about my plans to

have children or my family responsibilities?

A. Possibly, but only if the questions are asked of all em-

ployees in a non-discriminatory fashion. Thus, it would be

illegal for an employer to ask women job applicants, but not

men, about their child-bearing plans or their familial respon-

sibilities, or to use that information only against women.

State law also makes clear that women affected by pregnan-

cy or childbirth “shall be treated the same for all employ-

ment-related purposes [including fringe benefits] as other

persons ... similar in their ability or inability to work.”

In addition, the U.S. Supreme Court has held that companies

cannot, under federal law, adopt “fetal protection” policies

that bar women of child-bearing age from certain hazardous

jobs that could be harmful to fetuses.

Such policies would

also be discriminatory under state law.

Q. Does the Constitution itself set any limits on intrusive

questions that a government employer can ask?

A. Most protections that a job applicant will have in this

context are those created by statute, not the Constitution. In

a recent case, the U.S. Supreme Court assumed, without

deciding, that there is a constitutional privacy interest in

“avoiding disclosure of personal matters.” But the Court

also held that the government, as an employer, has a fairly

broad hand in making inquiries of job applicants. In this

instance, the Court found no constitutional violation in a

widely-used federal job application form that asked appli-

cants, among other things, to provide information about any

drug treatment or counseling they had received, and that

asked their references broad open-ended questions about the

applicant’s “honesty or trustworthiness.”

But the decision does not rule out the possibility of raising

constitutional claims in extreme cases. For example, one

court has held that a female police officer candidate’s con-

stitutional right to privacy was violated by intrusive inquir-

ies about her personal sexual activities.

Cir. 2004). For a ruling more protective of employees’ rights, see

EEOC v. Red Robin Gourmet Burgers, 2005 WL 2090677

(W.D.Wash. 2005).

81. Cook v. Dept. of Mental Health, Retardation and Hospitals, 10

F.3d 17 (1st Cir. 1993).

82. Hodgdon v. Mt. Mansfield Co., 624 A.2d 1122 (Vt. 1992).

83. For example, compare Briggs v. Northern Muskegon Police Dept.,

563 F.Supp. 585 (W.D. Mich. 1983), aff’d 746 F.2d 1475 (6th Cir.

1984) with Hollenbaugh v. Carnegie Free Library, 436 F.Supp. 1328

(W.D. Pa. 1977), aff’d 578 F.2d 1374 (3rd Cir. 1978).

84. R.I.G.L. §28-5-1 et seq.

85. R.I.G.L. §28-5-24.

86. R.I.G.L. §28-5-6(7)(i).

87. R.I.G.L. §28-5-7(2) and (3). However, religious organizations are

exempt from FEPA provisions barring discrimination on the basis of

sexual orientation. R.I.G.L. §28-5-6(7)(ii). A somewhat broader reli-

gious exemption appears in a new statute adopted by the General As-

sembly establishing state recognition of “civil unions,” but the impact

of this discrepancy remains unclear. R.I.G.L. §15-3-1-5, P.L. 11-198.

88. R.I.G.L. §28-5-6(15).

89. See R.I.G.L. §23-6.3-11.

90. R.I.G.L. §28-5-6(10). Under certain circumstances, such discrimi-

nation may also violate federal law. See Schroer v. Billington, 577

F.Supp.2d 293 (D.D.C. 2008).

91. R.I.G.L. §45-2-15.2. The law continues to allow residency require-

ments for city or town managers and administrators.

92. United Building & Construction Trades Council v. Mayor of Cam-

den, 465 U.S. 208 (1984).

93. R.I.G.L. §36-4-30. [Repealed by P.L. 2007, chap. 332, §2.]

94. The U.S. Supreme Court has spoken of the Constitution’s protec-

tion of a person’s right “to pursue a livelihood in a State other than his

own.” Baldwin v. Montana Fish & Game Commission, 436 U.S. 371,

386 (1978) See also Supreme Court of New Hampshire v. Piper, 470

U.S. 274 (1985) (striking requirement that only residents may be mem-

bers of the state Bar) and Silver v. Garcia, 760 F.2d 33 (1st Cir. 1985)

this ruling by amending provisions in the commercial driv-

ers’ license law that related to disqualification for criminal

convictions. See 1993 R.I. Pub. Laws, chapter 401.

68. See, e.g., Smith v. Fussenich, 440 F.Supp. 1077 (D.

Conn. 1977); Miller v. Carter, 547 F.2d 1314 (7th Cir.

1977), aff’d by an equally divided court, 434 U.S. 356

(1978).

69. R.I.G.L. §36-4-38.

70. Rule 6.05(b). Available online at http://

www.diversity.ri.gov/personnel/personnel2.html.

71. R.I.G.L. §23-20.10-14.

72. See, e.g, Earwood v. Continental Southeast Airlines, 539

F.2d 1349, 1351 n.6 (4th Cir. 1976) (collecting cases). But

see infra regarding state law protections against discrimina-

tion on the basis of gender identity.

73. Carroll v. Talman Federal Savings & Loan Assn., 604

F.2d 1028 (7th Cir. 1979), cert. denied, 445 U.S. 929

(1980).

74. See, e.g., Laffey v. Northwest Airlines, Inc., 366 F.Supp.

763 (D.D.C. 1973), 374 F.Supp. 1382 (D.D.C. 1974), aff’d

in relevant part, 567 F.2d 429 (D.C. Cir. 1976).

75. See, e.g., Priest v. Rotary, 634 F.Supp. 571 (N.D.

Cal.1986); EEOC v. Sage Realty Corp., 507 F.Supp. 599

(S.D.N.Y. 1981).

76. Bradley v. Pizzaco of Nebraska, 939 F.2d 610 (8th Cir.

1991).

77. EEOC v. Alamo Rent-A-Car, 432 F.Supp.2d 1006

(D.Ariz. 2006); Haqq v. Pa. Dept. of Public Welfare, 2010

WL 1253452 (E.D. Pa. 2010); EEOC v. White Lodging Ser-

vices Corp., 2010 WL 1416676 (W.D. Ky. 2010). But see

EEOC v. GEO Group, 616 F.3d 265 (3rd. Cir 2010)

(upholding a ban on wearing of khimars by prison employ-

ees, based on security concerns).

78. R.I.G.L. §28-5-6(10).

79. Kelley v. Johnson, 425 U.S. 238 (1976).

80. Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st

Drug Testing

Q. Can my employer require me to take a drug test?

A. Generally, no (although there are exceptions, which are described

below). Recognizing both the inaccuracy of these tests and the indigni-

ty to workers that they represent, the Rhode Island legislature has

adopted a very strict law regulating the use of drug testing by employ-

ers. While urine testing is the most common form of drug test, the law

also applies to testing of a person’s blood or other bodily fluid or tissue

for evidence of drug use. Except for certain well-defined occupations,

all random drug testing is banned under this law.

A particular employee can be tested only when the employer has rea-

sonable grounds to believe, based on specific aspects of the employ-

ee’s job performance and specific, articulable contemporaneous obser-

vations, that the employee’s use of controlled substances is impairing

his or her ability to perform the job.

That is, the employer needs both

reasonable grounds to believe you are using drugs and evidence that

your drug use is actually interfering with your job performance before

you can be required to submit to such a test. Rumors that you take

drugs are not sufficient grounds to require a test. Similarly, a policy

requiring employees to be tested for drugs after any workplace acci-

dent would be improper under this law.

Q. If my employer does have grounds to test me, what procedures

have to be followed?

A. First, you must be allowed to give the sample in private, without

anybody watching. Second, the employer must have any positive test

result confirmed by a federally certified laboratory by means of scien-

tifically accurate technology such as “gas chromatography/mass spec-

trometry.”

Third, if the test comes back positive, you must be given the oppor-

tunity, at the employer’s expense, to have the sample retested by an-

other facility. You must also be given the chance to explain the results

(in case, for example, you have been taking a prescribed medication

that shows up as a positive result). Any positive test results must be

kept confidential by the employer, and may only be disclosed to other

employees who have a job-related “need to know.” Fourth, testing is

allowed only if the employer has formally adopted a drug abuse pre-

vention policy that complies with the drug testing statute.

Finally, and significantly, the testing must have a remedial,

not punitive, purpose. It is illegal under the statute for an

employer to fire a worker solely on the basis of a positive

drug test result. Instead, employers can require employees

testing positive to seek treatment with a substance abuse

professional. Only if, in the course of such treatment, further

testing indicates continued use of controlled substances, can

the employee be fired based on test results.

Q. What are the penalties if an employer violates the drug

testing law?

A. Violation of the law is a misdemeanor punishable by a

$1,000 fine or a year in jail. In addition, an aggrieved em-

ployee has the right to go into court to halt any illegal drug

testing, and to obtain attorney’s fees for successful suits un-

der the law. The employee is further entitled to an award of

punitive damages, as well as any actual damages that may

have been incurred, for violations of the law.

Q. What occupations are not protected from random test-

ing?

A. First, Rhode Island’s drug testing law specifically states

that employees in two industries – mass transportation and

public utilities – can be subject to random urine testing if it

is made a condition by the federal government for a state

agency’s continued receipt of federal funds.

There is a third, and very limited, exception as well for

“International Association of Bridge, Structural, Ornamental

and Reinforcing Iron Workers and its signatory contractors”

jointly participating in a national substance abuse program

that prequalifies workers for employment in that field. How-

ever, participation in the program must be voluntary, and

there are limits on the penalties that can be imposed for a

positive drug test.

In addition, there are some federally-regulated occupations

where the federal government has mandated the implemen-

tation of random drug testing. When the federal

51. 18 U.S.C. §2510 et seq.

52. See, e.g., Desilets v. Wal-Mart Stores, Inc., 171 F.3d 711 (1st Cir.

1999) (upholding award of damages under federal anti-wiretapping law

against employer who used hidden recording devices to tape employ-

ees’ private conversations).

53.Walden v. City of Providence, 596 F.3d 38 (1st Cir. 2010).

54. Rogers Electric Inc., 346 N.L.R.B. 53, February 24, 2006.

55. R.I.G.L. §28-6.12-1.

56. R.I.G.L. §9-1-28.1.

57. R.I.G.L. §28-7-13(1). However, R.I.G.L. §28-7-45(a) provides that

certain employers are exempt from the provisions of the chapter in

which this prohibition appears.

58. See, e.g., National Steel Corp. v. NLRB, 324 F.3d 928 (7th Cir.

2003).

59. Vega-Rodriguez v. Puerto Rico Telephone Company, 110 F.3d 174,

180 (1st Cir. 1997); Rosario v. United States, 538 F.Supp.2d 480

(D.P.R. 2008); Doe v. Luzerne Cty., 2011 WL 4823387 (3rd Cir. 2011).

60. See, e.g., Alexandre v. New York City Taxi and Limousine Comm’n,

2007 WL 2826952 (S.D.N.Y. 2007); Elgin v. St. Louis Coca-Cola Bot-

tling Co., 2005 WL 3050633 (E.D. Mo. 2005); Haggins v. Verizon New

England, 2011 WL 3129761 (1st Cir. 2011).

61. Henry v. Earhart, 553 A.2d 124 (R.I. 1989).

62. See, e.g., R.I.G.L. §16-48.1-5.

63. See, e.g., R.I.G.L. §16-48.1-8.

64. Green v. Mo. Pacific Railroad Co., 523 F.2d 1290 (8th Cir. 1975).

65. “Policy Guidance on the Consideration of Arrest Records in Em-

ployment Decisions under Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. §2000e et seq. (1982),” No. 915.061, Equal Em-

ployment Opportunity Commission, September 7, 1990. Available

online at http://www.eeoc.gov/policy/docs/arrest_records.html.

66. El v. Southeastern Pennsylvania Transportation Authority, 479 F.3d

232 (3d. Cir. 2007).

67. Hill v. Gill, 703 F.Supp. 1034 (D.R.I. 1989), aff’d 893 F.2d 1325

(1st Cir. 1989). In 1993, the General Assembly limited the impact of

35. “EEOC Enforcement Guidance: Pre-Employment Disa-

bility Related Questions and Medical Examinations,” No.

915.002, Equal Employment Opportunity Commission, Oc-

tober 10, 1995. Available online at http://www.eeoc.gov/

policy/docs/preemp.html.

36. See “EEOC Informal Discussion Letter: Pre-Offer Medi-

cal Exams,” July 1, 2003. Available online at: http://

www.eeoc.gov/eeoc/foia/letters/2003/ada_pre-

offer_exams.html.

37.

RI ACLU v. CVS/Pharmacy, RICHR No. 10 EMD 112-

06/05. Among the “attitudinal” statements to which appli-

cants were required to respond, and which were removed:

“You change from happy to sad without any reason”; “You

get angry more often than nervous”; and “Your moods are

steady from day to day.”

38. O’Connor v. Ortega, 480 U.S. 709 (1987).

39. U.S. v. Mancini, 8 F.3d 104, 108-109 (1st Cir. 1993).

40. See, e.g., Gossmeyer v. McDonald, 128 F.3d 481 (7th

Cir. 1997).

41. Leventhal v. Knapek, 266 F.3rd 64 (2nd Cir. 2001).

42. Wilson v. Moreau, 440 F.Supp.2d 81, 104 (D.R.I. 2006).

43. City of Ontario v. Quon, 130 S.Ct. 2619 (2010).

44. Timekeeping Systems, Inc., 323 N.L.R.B. No. 30 (1997).

45. E.I. DuPont de Nemours & Co., 311 N.L.R.B. 893

(1993).

46. Guard Publishing Company v. NLRB, 571 F.3d 53 (D.C.

Cir. 2009).

47. Lee Enters Inc. d/b/a Arizona Daily Star, NLRB Div. of

Advice, No. 28-CA-23267 (4/21/2011).

48. See, e.g., JT’s Porch Saloon & Eatery Ltd., NLRB Div.

of Advice, No. 13-CA-46689 (7/7/2011), Wal-Mart, NLRB

Div. of Advice, No. 17-CA-25030 (7/19/2011).

49. R.I.G.L. §11-35-21; R.I.G.L. §12-5.1-1 et seq.

50. R.I.G.L. §11-35-21(c)(1).

government enacts such laws or regulations, they automatically over-

ride the protections provided by state law.

Thus, certain employees in “safety-sensitive” positions may be subject

to random testing even if they live in Rhode Island (although the con-

stitutionality of some of these testing programs, and questions as to

what constitute “safety-sensitive positions” that can be subject to test-

ing, continue to be challenged in the courts).

For example, a locally-based airline pilot who was fired for refusing to

submit to a drug test argued that the state’s drug testing law protected

him from dismissal. However, a court held that federal regulation of

the airline industry preempted Rhode Island’s drug testing law.

Q. Do I have any recourse if a drug test erroneously shows a positive

result?

A. Possibly. The Americans with Disabilities Act could have some

impact in this regard. The ADA bans discrimination against a person

erroneously perceived to be an illegal drug user.

Thus, an inaccurate

drug test could make an employer liable under the ADA.

An employer

and/or the facility performing the testing could also potentially be lia-

ble on grounds of negligence, defamation or similar claims.

Q. You keep on referring to employees. Does that mean that job ap-

plicants can be tested for drugs?

A. In private employment, yes. However, state law sets certain condi-

tions on pre-employment testing. First, it can be required only after

the applicant has been given a conditional offer of employment. Fur-

ther, the applicant must be allowed to give the sample in private, and

the employer must confirm any positive test result with the use of “gas

chromatography/mass spectrometry” or similarly accurate technolo-

gy.

However, an employer need not follow these testing conditions to

the extent they are inconsistent with federal law requirements.

Q. What about applicants for government jobs?

A. Rhode Island prohibits drug testing for most persons seeking em-

ployment with the state or municipalities. Testing of applicants for

government jobs is allowed only for the following occupa-

tions: (1) law enforcement officers; (2) correctional officers;

(3) firefighters; and (4) occupations where testing is re-

quired by federal law or required for the continued receipt

of federal funds.

Honesty and Personality Testing

Q. Can my employer or prospective employer force me to

take a polygraph (lie detector) test?

A. No. Under Rhode Island law, no employer may require

an employee or job applicant to submit to a lie detector test

as a condition of either obtaining a job or continuing em-

ployment. In fact, it is unlawful for an employer to even ask

a job applicant or employee to take a lie detector test. An

employer cannot get around this by having you take the test

outside the state. In short, state law makes it clear that these

tests have no place whatsoever in the workplace.

Q. What should I do if I’m told or asked to take a poly-

graph test?

A. The law gives you the right to go into court and obtain an

order barring the test from being given. In addition, the

court can award damages and attorney’s fees to an employ-

ee or job applicant who was illegally asked or forced to take

a test.

You can also contact the Attorney General’s office

and the local police department, since violation of this law

is a misdemeanor punishable by up to a $1,000 fine.

Q. Are any other types of “lie detector” tests prohibited?

A. Yes. The term “lie detector” is broadly defined in the

law.

Although polygraph tests are perhaps the most well-

known type of “lie detector,” there are others. For instance,

“psychological stress evaluators” claim to detect and record

fluctuations in your voice produced by stress, which alleg-

edly indicate if you are lying. These are just as unreliable as

polygraph tests, and just as illegal.

14. Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir. 1983), cert.

denied, 469 U.S. 979 (1984).

15. R.I.G.L. §28-6.5-1.

16. R.I.G.L. §28-6.5-1(a)(1).

17. Accord, Doyon v. Home Depot USA Inc., 850 F.Supp. 125 (D.

Conn. 1994).

18. R.I.G.L. §28-6.5-1(a)(2) through (a)(8).

19. R.I.G.L. §28-6.5-1(b) and (c).

20. R.I.G.L. §28-6.5-1(e). See also, e.g., R.I.G.L. §20-2-27.1(c), re-

quiring licensed charter boat operators and crew to be subject to feder-

al drug testing requirements.

21. P.L. 2011, ch. §221, R.I.G.L. §28-6.5-1(f).

22. French v. Pan Am Express, 869 F.2d 1 (1st Cir. 1989).

23. 42 U.S.C. §12114.

24. See, e.g., Elliott v. Laboratory Specialists, Inc., 588 So.2d 175

(La.App. [5th Cir.] 1991), writ denied, 592 So.2d 415 (La.1992). For a

contrary ruling, see SmithKline Beecham Corp. v. Doe, 903 S.W.2d

347 (Tex. 1995).

25. R.I.G.L. §28-6.5-2(a).

26. R.I.G.L. §28-6.5-2(c).

27. R.I.G.L. §28-6.5-2(b).

28. R.I.G.L. §28-6.1-1. Though not as encompassing as Rhode Island’s

ban, a federal law known as the Employee Polygraph Protection Act

also restricts polygraph testing in employment. 29 U.S.C. §2001 et

seq.

29. R.I.G.L. §28-6.1-3.

30. R.I.G.L. §28-6.1-2.

31. R.I.G.L. §28-6.1-4.

32. R.I.G.L. §28-6.1-1.

33. Tucker v. Town of Glocester Police Department, RICHR No. 88

ERE 319-19/19.

34. 42 U.S.C. §2000e-2(l).

Endnotes

1. At the same time, state law privacy claims which depend

upon the meaning of the collective bargaining agreement

may be preempted under the federal Labor Management

Relations Act, 29 U.S.C. §185. See, e.g., Flibotte v. Penn-

sylania Truck Lines, 131 F.3d 21 (1st Cir. 1997).

2. Ironically, however, state employees may have less pro-

tection than other employees where certain federal statutes

are involved. That is because, in a series of decisions, the

U.S. Supreme Court has held that states have “sovereign

immunity” from suit by its employees under some federal

laws, such as the Age Discrimination in Employment Act,

Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), and

the Americans with Disabilities Act, Board of Trustees of

the University of Alabama v. Garrett, 531 U.S. 356 (2001).

3. R.I.G.L. §28-5-7(4)(i) and (iii).

4. One exception to the prohibition is that employers can

request that an employee voluntarily provide information

for affirmative action purposes so long as the answers are

maintained separately from other application materials.

5. 42 U.S.C. §12101.

6. 42 U.S.C. §12112; 29 C.F.R. §1630.13 et seq.

7. 42 U.S.C. §12112(d)(4)(A).

8. “EEOC Enforcement Guidance: Workers’ Compensation

and the ADA,” Doc. No. 915.002, Equal Employment Op-

portunity Commission, July 6, 2000. The document can be

found online at http://www.eeoc.gov/policy/docs/

workcomp.html.

9. R.I.G.L. §28-5-7(7).

10. The extent to which a job applicant’s conviction record

can be used by an employer is discussed infra.

11. R.I.G.L. §28-5-6(2).

12. United Auto Workers v. Johnson Controls, 499 U.S. 187

(1991).

13. NASA v. Nelson, 131 S.Ct. 746 (2011).

Q. What about written “honesty” tests?

A. Because of the state’s strict ban on polygraph tests, some employers

began turning to another tool: pencil-and-paper “honesty tests.” By

asking a series of yes-no or multiple-choice questions designed to

measure your attitudes toward theft, these tests claim to determine

whether you are an honest person. While these written tests are not

banned in the state, their use is strictly limited. Rhode Island law pre-

vents employers from using the results of such a test as the primary

basis for an employment decision.

Thus, if you apply for a job in

which you take a written “honesty test,” and you don’t get hired, your

rights have been violated unless the employer can indicate another le-

gitimate reason for not hiring you. The penalties and remedies for im-

proper use of “honesty tests” are the same as those for polygraph tests.

Q. Can employers give psychological tests?

A. While there has been little litigation challenging such tests on priva-

cy grounds, federal and state anti-discrimination laws limit the use of

psychological testing in a few significant ways. First, it is probably

illegal for such tests to contain questions relating to race, sex, religion

or other classes protected by anti-discrimination laws. Consider the

Minnesota Multi-Phasic Personality Inventory (MMPI), a popular psy-

chological test administered to police candidates and for other occupa-

tions. The R.I. Commission for Human Rights found probable cause

to believe that the inclusion of questions about religious beliefs in the

MMPI violated the state law’s ban on employers asking job applicants

questions relating to their religion. As a result of that finding, a con-

sent order was issued, and those questions were deleted from the tests

given police officer applicants in the state.

In addition, the federal Civil Rights Act of 1991 prohibits adjusting

scores or using different cut-off scores in tests on the basis of race, sex,

national origin or religion.

Some psychological tests, such as the

MMPI, have had separate scoring systems for males and females, and

use of such systems would appear to be illegal under this federal law.

Of even more significance, the Americans with Disabilities Act bans

most psychological testing prior to the conditional offer of employ-

ment to a job applicant. The determining factor in a test’s pre-

employment propriety is whether it constitutes a “medical” examina-

tion. Federal guidelines state that psychological tests are considered

medical examinations “to the extent that they provide evi-

dence concerning whether an applicant has a mental disor-

der or impairment,” or if the exam is used by an employer

“to assess an applicant’s general psychological health.”

The guidelines go on to note that even if the test does not

constitute a medical examination, “individual inquiries on

the test that concern the existence, nature, or severity of a

disability are prohibited at the pre-offer [of employment]

stage.” Many psychological tests would fall into these cate-

gories, in whole or in part, and their continued pre-

employment use could be open to challenge.

The same would appear to apply to some so-called

“personality tests,” which are increasingly being used by

employers. The EEOC has noted that a test used to “identify

traits such as poor judgment, chronic lateness, poor impulse

control, and quick temper are not medical examinations.”

But to the extent that such a test seeks to measure, or could

be used to determine, whether the individual suffers from,

for example, excessive anxiety or depression or has other

mental impairments that are listed in the Diagnostic and Sta-

tistical Manual of Mental Disorders, it could constitute an

illegal medical examination.

A recent Rhode Island case is instructive in that regard. The

R.I. Commission for Human Rights found probable cause to

believe that certain “attitude-related” questions being asked

in an online job application could have a discriminatory im-

pact on people with certain mental impairments or disor-

ders. As a result, seventeen questions were deleted from the

survey under a consent agreement resolving the complaint.

Searches and Surveillance

Q. Does my employer have the right to physically search

me or my belongings at the workplace?

A. Generally, a private employer is free to search you, your

desk, your locker, and other belongings. There are some

limitations, however. For example, the employer cannot

differentially enforce search policies on such grounds as sex

or race. Further, employer searches performed with the

who refuses to violate the law at an employer’s behest. If an employer

does retaliate against you, this Act gives you the right to go into court

to obtain redress. In such a case, the court is authorized to order ap-

propriate remedies, including reinstatement with back pay, damages,

and attorney’s fees.

126

There are also some overlapping federal and state laws that protect

employees from retaliation in particular instances, such as for report-

ing illegal discrimination in the workplace.

127

Further, if you are a

government employee, you may be able to challenge your employer’s

action – whether it’s to discharge, discipline, demote or otherwise dis-

criminate against you – as a violation of your constitutional rights.

128

are: records relating to the investigation of possible criminal

offenses; records prepared for use in any criminal, civil or

grievance proceedings; letters of reference or recommenda-

tions; managerial records kept or used only by the employ-

er; confidential reports from previous employers; and mana-

gerial planning records. In addition, employers do not have

to let an employee see his or her file more than three times

in any one year.

A federal law, known as the Privacy Act, gives federal em-

ployees even broader rights to inspect their records, includ-

ing the opportunity to contest inaccurate information in their

files and to have it corrected.

122

State employees have simi-

lar rights under Department of Administration personnel

regulations.

123

Q. How does the law protect victims of domestic violence

from workplace discrimination?

A. In response to stories of employers further victimizing

victims of domestic violence, a state law was enacted which

recognizes that it is up to the victim, not his or her employ-

er, to decide whether to seek help in the courts for this prob-

lem. The law bars employers from firing, refusing to hire or

otherwise discriminating against a person solely because she

or he sought or obtained, or refused to seek or obtain, a do-

mestic violence restraining order. The statute provides vari-

ous remedies for employer violations.

124

“Blowing the Whistle”

Q. If my employer violates my privacy rights that are pro-

tected by law, can he or she retaliate against me if I “blow

the whistle”?

A. No. Rhode Island has a “Whistleblowers’ Protection

Act” which protects all employees – both public and private

– from retaliation for reporting any violation of federal, state

or municipal law to either their employer or supervisor or to

a public body, including a court.

125

(The protection does not

apply, however, if you file a report that you know or have

reason to know is false.) The law also protects an employee

intent to harass a person engaged in union activities may be an unfair

labor practice prohibited by federal law. In addition, it is possible that,

under certain circumstances, you may have other remedies. If you be-

long to a union, the union contract may limit the employer’s right to

search. For particularly egregious or intrusive searches, you may have

private causes of legal action based on allegations of assault, false ar-

rest, mental distress or other grounds.

Q. Are the search rules different if I work for a government agency?

A. Yes. A governmental employer has less freedom to search employ-

ees because the public employee is protected from unreasonable search-

es and seizures under the Fourth Amendment to the U.S. Constitution.

In 1987, the U.S. Supreme Court held that public employees have some

expectation of privacy in their place of work, and thus an employer’s

search of a desk or file is allowable only if it is, in the Court’s words,

“reasonable under all the circumstances.” The Court further suggested

that a higher standard might be appropriate for such items as a closed

briefcase or handbag, in which one’s expectation of privacy is particu-

larly great.

In a Rhode Island case, a federal appeals court ruled that a mayor had

an expectation of privacy in an appointment calendar contained in a

box in a Town Hall attic. Emphasizing the need for a case-by-case anal-

ysis, the court held that the mayor had a legitimate privacy interest in

the contents of the calendar, which contained both personal and public

entries, and that his expectation of privacy was not necessarily limited

to his or her own work area.

In other cases, though, courts have not

been as receptive to privacy claims arising from workplace searches.

Q. What about the privacy of information on my office computer?

A. The same rules would generally apply. A private employer will be

able to argue that the computer belongs to the employer and is subject

to inspection at any time. Depending on the circumstances, a public

employee may be able to claim some reasonable expectation of privacy

in the contents of his or her computer if, for example, it is located in a

private office and the computer is not shared with others. Nonetheless,

the employer will likely not violate the Constitution in conducting

“reasonable” searches of the computer’s contents, such as when con-

ducting an investigation into allegations of workplace misconduct.

In a Rhode Island case, a federal court ruled that a librarian

had no reasonable expectation of privacy in stored docu-

ments on a computer system that was open for public use,

and where stored emails were disseminated or received over

a shared network.

In short, employees’ rights in this regard

will boil down to specific determinations as to the employ-

ee’s “reasonable expectation of privacy” regarding the com-

puter and the employer’s need to access information from it.

Q. Does a public employee have any privacy protection in

emails sent from the workplace?

A. This is an evolving area of the law, so there are no clear

answers. The U.S. Supreme Court was recently confronted

with this question in a case involving a police department’s

decision to review the text messages of employees who ex-

ceeded the monthly limit on their office pagers. Although

the court ruled under the unique facts of this case that the

review of the messages was legal, the decision rested on

very narrow grounds. The court found it unnecessary to re-

solve the threshold issue of whether the officers had a rea-

sonable expectation of privacy in their text messages. Not-

ing the rapidly changing technology involved, the decision

cautioned that courts “must proceed with care when consid-

ering the whole concept of privacy expectations in commu-

nications made on electronic equipment owned by a govern-

ment employer.”

For the foreseeable future, then, courts

will have to sort out the complex privacy issues raised by

employee emails, texting and similar communications.

Q. Do any laws provide protection for the use of email by

private sector employees?

A. Generally, no, but the National Labor Relations Board

(NLRB) has issued a few opinions which address this issue

in the context of labor disputes. In one case, the NLRB held

that an employee using the company e-mail system to com-

municate with coworkers to criticize a personnel policy was

protected by federal labor law.

In another ruling, the

NLRB held that a policy allowing employees to use e-mail

for personal use but not to distribute union literature

Q. Can an employer use my credit history to not hire me?

A. There are no state or federal laws explicitly banning this practice,

which has become increasingly common. However, the Equal Employ-

ment Opportunity Commission has released a legal advisory letter

warning that the use of credit checks to screen job applicants could be

unlawful if it leads to the disproportionate exclusion of women, minor-

ities or other groups protected by employment anti-discrimination

laws, and is performed in the absence of a business necessity.

116

addition, an employer who denies a person a job as the result of infor-

mation obtained from a credit reporting agency must advise the appli-

cant of that fact and their legal right to contest the information.

117

Q. Can an employer bar me from speaking a language other than

English in my personal conversations with other employees?

A. Under federal agency guidelines, English-only rules are allowable

only when needed to promote the safe or efficient operation of the em-

ployer’s business. Thus, according to the EEOC, blanket English-only

rules that covered lunch and break times would almost certainly be

deemed a violation of anti-discrimination laws. Other policies would

also be legally questionable in the absence of a showing of business

necessity, according to the EEOC.

118

However, courts that have inter-

preted those same laws have come to differing conclusions about the

legality of English-only policies.

119

In light of those conflicting court

decisions, it is probably safest to say that the answer will depend on all

the circumstances.

Q. Are there laws that protect a woman’s right to breastfeed at work?

A. Both the R.I. General Assembly and Congress have enacted laws to

provide for reasonable unpaid break time to an employee who needs to

breastfeed or express breast milk for an infant child (and to be able to

do so in private, wherever possible). However, both laws exempt

smaller businesses where complying with the law would impose an

“undue hardship.”

120

Q. Do I have a right to inspect my personnel file?

A. Yes. A state law gives all employees the right, after at least seven

days notice, to inspect their personnel file.

121

Exempted from review

Q. Do I have any privacy protections if I participate in an

Employee Assistance Program?

A. Yes. Many employers have established Employee Assis-

tance Programs (EAP) to provide workers access to profes-

sional help for personal problems they may be having. Be-

cause employees often disclose very private information to

EAP counselors, confidentiality is crucial. A Rhode Island

law safeguards that confidentiality. With one exception, the

law prohibits employers from releasing the name, address or

any other information obtained through an employee’s par-

ticipation in an EAP.

111

The only time an employer may

breach this confidentiality is when the information relates to

a crime which must be reported by law. An employee whose

privacy is violated may sue for compensatory and punitive

damages, attorney’s fees and injunctive relief against the

employer.

112

It is important to note, however, that this law

does not in any way address limitations on an employer’s

right to obtain information from the program.

Q. Can an employer require me to participate in a health

wellness program?

A. No. Participation in such a program, which often requires

revealing medical history, must be voluntary. That is, an

employer can neither require participation nor penalize em-

ployees who do not participate.

113

However, the EEOC has

not definitively addressed the question of how far employers

can go in offering financial or other incentives to employees

to participate in wellness programs without making partici-

pation unlawfully coercive.

114

Miscellaneous Privacy Issues

Q. Can an employer require job applicants to disclose per-

sonal tax information?

A. No. A state law bars employers from requesting or re-

quiring job applicants to provide copies of their income tax

returns “or related tax documents” as a condition of consid-

eration for employment.

115

Injunctive and monetary reme-

dies are available for violations of this law.

violated the law.

A federal appeals court ruling supports that princi-

ple.

The NLRB General Counsel’s office also issued an “advice letter” in-

volving Pratt & Whitney, concluding that a policy prohibiting all per-

sonal use of the company’s e-mail system was illegally overbroad be-

cause it restricted union solicitation during non-work time. But the

NLRB has also held that disciplining an employee pursuant to an over-

broad rule is not unlawful if the underlying conduct of the employee

was not itself protected activity.

Q. What about postings about an employer on private social media

sites like Facebook?

A. As a general rule, the issue will come down to whether the com-

ments relate to the types of organizing activity that federal labor laws

were designed to protect. For example, in a series of recent opinions,

the NLRB has emphasized that employment complaints posted by em-

ployees on social media sites that are more in the nature of individual

gripes than “concerted activity” are not protected under federal labor

law.

Q. Can my employer monitor my phone or private conversations?

A. It depends. Phone monitoring has long been practiced by compa-

nies with operators that deal regularly with the public. Rhode Island

laws generally restrict the interception of phone communications with-

out consent of one of the parties to the conversation,

but there is an

exception for agents or employees of “a communication common car-

rier” that engages in monitoring of phone calls “for mechanical or ser-

vice quality control checks.”

Thus, it is not illegal, for example, for

the telephone company to listen in on operator phone calls.

In other circumstances, though, an employer may be in violation of

state law – or a similar federal statute

– if he or she eavesdrops on

your personal phone conversations in the workplace. The same would

be true for other types of audio surveillance, whether they are wire,

oral or electronic communications. For example, if an employer places

a microphone in a work area or locker room, and the equipment is ca-

pable of picking up private conversations of employees, this would

appear to be illegal.

Special rules may apply for law enforcement

employees: a federal appeals court recently ruled that, at least as of

2002 when the taping occurred, public safety employees did

not have a clearly established constitutional right to be free

from having calls they made at work recorded.

As with other types of surveillance, special protections ap-

ply in the context of collective bargaining activities. Thus,

the National Labor Relations Board has held that an em-

ployer illegally created an impression of employee surveil-

lance when he displayed at an employee meeting a company

telephone bill that highlighted a call that had been made to

the state department of labor.

Q. Can an employer engage in video surveillance?

In private employment, probably, but with a few exceptions.

First, Rhode Island law bars an employer, in the absence of

a court order, from making an audio or video recording of

an employee “in a restroom, locker room, or room designat-

ed by an employer for employees to change their clothes.”

In addition, use of video cameras in certain other private

workplace locations could be deemed to violate a state stat-

ute which protects the “right to be secure from unreasonable

intrusion upon one’s physical solitude or seclusion.”

Again, special protections come into play where collective

bargaining is involved. A state labor law bars an employer

from spying upon or keeping under surveillance employee

activities which are related to the exercise of collective bar-

gaining rights or the forming of labor unions.

And, in a

series of decisions, courts have upheld National Labor Rela-

tions Board rulings that the installation of surveillance cam-

eras is a mandatory subject for collective bargaining with a

union.

If you work for the government, you likely have greater pro-

tection from questionable surveillance techniques that are an

invasion of a legitimate expectation of privacy. The legal

standards would be similar to those governing workplace

searches, focusing on a factual analysis of the reasonable-

ness of the employee’s expectation of privacy. Thus, an em-

ployer’s overt use of a video surveillance system in open

work areas would not violate the Fourth Amendment, but if

of your medical records without your consent.

101

The statute authorizes

persons whose confidentiality has been violated to sue for damages,

and successful suits have been brought under the law.

102

Knowing vio-

lations of the law also carry potential criminal penalties.

103

There are a

large number of exceptions to the statute, however.

104

Q. Can employers engage in genetic testing of their employees or job

applicants?

A. No. Genetic testing can be used to determine a person’s susceptibil-

ity to certain diseases. Because testing can divulge private information

about a person’s genetic traits and can be utilized for discriminatory

purposes, both Rhode Island and federal law have banned its use in the

employment setting. State law bars employers from requesting, requir-

ing or administering genetic tests to employees or job applicants. It is

also illegal for a third party to sell to, or interpret for, an employer a

genetic test of a current or prospective employee.

105

Damages, attor-

ney’s fees and injunctive relief may be obtained in court for any viola-

tion of this ban.

106

In 2008, Congress passed a similar federal prohibi-

tion, known as the Genetic Information Nondiscrimination Act.

107

Q. If I have a drug or alcohol abuse problem, am I protected from

discrimination?

A. Possibly. The Americans with Disabilities Act regards alcoholism

as a protected disease, and further provides protection to recovering

drug addicts (but not to people with a current drug problem).

108

Thus,

while a person’s unsatisfactory workplace performance or conduct that

is related to a drug or alcohol problem is not protected, an employee’s

mere status as an alcoholic or recovering drug addict is not a proper

subject for discriminatory action by an employer.

Q. What if I use medical marijuana?

A. Rhode Island’s medical marijuana law specifically makes it illegal

for an employer to refuse to employ or to “otherwise penalize” a per-

son based solely on his or her status as a medical marijuana card hold-

er.

109

At the same time, an employer has no obligation to accommo-

date the medical use of marijuana in the workplace, so if private use

interfered in any way with the job, the law’s protections would proba-

bly not apply.

110

Q. Can I take time off to raise a child or care for a sick

family member without losing my job?

A. Possibly. Rhode Island has adopted a law known as the

“Parental and Family Medical Leave Act.”

The Act applies

to full-time employees in all state agencies, in municipal

agencies with thirty or more employees, and in private busi-

nesses employing 50 or more people. The law entitles such

employees, if they have worked at their place of employ-

ment for at least a year, to 13 consecutive weeks of unpaid

leave due to the birth of a child to the employee, the adop-

tion of a child, or the serious illness of a family member or

themselves.

The Act allows aggrieved individuals to go into court to vin-

dicate the rights to parental and medical leave provided by

the law. Enforcement powers are also given to the state De-

partment of Labor.

Congress has passed a similar federal

law.

Medical Privacy

Q. Can my employer require me to take a test for HIV?

A. No. State law specifically forbids employers from requir-

ing employees or job applicants to be tested for HIV, the

virus responsible for AIDS, or from discriminating against

an individual based on a positive HIV test “or perception of

a positive test.”

Q. Do I have any recourse if an employer disseminates

medical information about me to others?

A. Probably. With only a few narrow exceptions, the Ameri-

cans with Disabilities Act sets very strict limits on the re-

lease by employers of information obtained from post-offer

and post-hire medical examinations of employees.

Wheth-

er such a disclosure also arises to the level of a constitutional

violation will often depend on the seriousness of the medical

issue at hand.

100

In addition, Rhode Island has a health care confidentiality

act which limits the dissemination, by an employer or others,

videotaping were done surreptitiously or where an office’s physical

layout or purpose suggested an expectation of privacy, the result

might be different.

Q. What about the use of GPS technology to track me at work?

A. The use of Global Positioning System (GPS) technology in the

workplace has been growing in both the public and private sector.

Presently there are no federal or state laws prohibiting the practice.

The few court cases that have been brought to try to limit their use,

usually in the context of employers tracking employee work vehicles,

have thus far been unsuccessful.

Criminal Record Checks

Q. Can an employer obtain a criminal background check on me?

A. Possibly. For certain jobs, state (and sometimes federal) law re-

quires an applicant to undergo a criminal background check. The R.I.

Supreme Court has upheld the constitutionality of such require-

ments.

An unanswered question is whether an employer that does not

have specific statutory authority to obtain this information may force a

job applicant to sign a waiver permitting the release of his or her crim-

inal record history from the state Bureau of Criminal Identification

(BCI). Some employers do this, and it appears to circumvent the state

ban on asking job applicants about arrest records, since arrests not

followed by convictions may often show up on BCI records. A lawsuit

will probably be the only way to resolve the legality of this practice.

Q. Can I be forced to get fingerprinted for a job?

A. Under certain circumstances. For some occupations, ranging from

day care workers to campus security personnel to nurses, Rhode Is-

land law specifically requires applicants to be fingerprinted.

In many

instances, however, the law also requires that the police destroy the

prints promptly once a criminal record check, based on the finger-

prints,

is completed. Some federally-regulated jobs also have finger-

printing requirements. In the absence of explicit statutory authority,

however, an employer should not be able to require fingerprinting for

purposes of a criminal record check.

Q. Can I be fired or not hired because I have a criminal

record that is unrelated to my employment?

A. While an absolute ban on hiring persons with any criminal

record may be challenged under anti-discrimination laws if it

screens out a protected class,

private employers otherwise

generally have great discretion in taking employment actions

based on past criminal convictions. If you work in the private

sector, you may have little recourse even if the crime has no

relation to your job, unless you can show that the employer

treats certain people with criminal records differently be-

cause of their race or some other reason prohibited by law. If

you have a union, however, it is very possible you have addi-

tional protections against being fired.

The EEOC has taken the position that, in light of the dispar-

ate impact on racial minorities that the use of prior criminal

convictions has, employers must take into account the nature

and gravity of the offense, the time that has passed since the

conviction and sentence, and the nature of the job sought.

However, in one of the few court cases to analyze the

EEOC’s guidelines, a federal court rejected them and went

on to uphold a bus company policy denying employment to

any person with a violent criminal conviction, even though

the applicant’s conviction in this case had occurred forty

years previously.

It thus remains quite unclear how helpful

the EEOC’s standards are in challenging, on grounds of dis-

crimination, broad employer policies governing criminal rec-

ords.

If you work for the government, though, a firing or failure to

be hired may be in violation of your constitutional rights.

The courts have generally required government employers to

demonstrate a connection between the criminal offense and

the person’s job. At the same time, the courts have used var-

ying standards in defining this connection, and have some-

times been very deferential to the actions of government

agencies.

Thus, a federal court in Rhode Island held that a Department

of Transportation rule that banned ex-felons from being

school bus drivers was a rational requirement in light of the

sensitive nature of the job and the involvement of children.

private entity employing four or more people, as well as people “acting

in the interest of an employer directly or indirectly.”

Employment

agencies and labor organizations are also prohibited from engaging in

discriminatory activities under FEPA.

A person who was discrimi-

nated against on the basis of his or her heterosexuality is also protected

under the law.

It is also illegal for an employer to discriminate against a gay man or

lesbian based on outmoded and prejudicial fears about HIV. That is

because state and federal laws prohibit discrimination against employ-

ees or job applicants on the basis of HIV-status or the perception that a

person is HIV-positive.

Under these circumstances, a gay man or

lesbian would also have legal recourse against the employer.

Q. May an employer discriminate against transgendered persons?

A. No. In addition to providing protection on the basis of sexual orien-

tation, state law prohibits discrimination on the basis of gender identity

or expression, which is defined to include “a person’s actual or per-

ceived gender, as well as a person’s gender identity, gender-related

self image, gender-related appearance, or gender-related expression.”

Q. Can my employer require me to live in the city or town where I

work?

A.. There are no laws prohibiting such a requirement for private em-

ployees. However, state law explicitly prohibits municipalities from

requiring its employees to reside within the city or town as a condition

of appointment or continued employment.

In addition, if a municipality attempted to require private contractors

on city-funded projects to abide by residency requirements, such re-

quirements would likely be found unconstitutional.

Q. Are state employees required to live in Rhode Island?

A. No. For many years, Rhode Island did have a law requiring most

classified state employees to live in Rhode Island, but that law was

repealed in 2007.

Even when the law was on the books, however, its

constitutionality was open to serious question.

Q. May an employee be dismissed for having sexual rela-

tions with a person of the opposite sex to whom he or she

is not married?

A. The law does not prevent a private employer from dis-

charging an employee who engages in extra-marital sex.

Private sector employers have great discretion in deciding to

terminate their associations with people they consider

“immoral.” However, a violation of the law may exist if the

employer dismisses a female employee for taking part in an

“affair,” but takes no action against the male employee (or

vice versa), or makes inquiry about “affairs” of applicants or

employees of only one sex.

In the public sector, the employer typically cannot discharge

an employee without cause. Moreover, the public employee

may assert constitutional rights of due process and privacy

in support of his or her right not to be dismissed. Thus, a

public sector employer generally would have to show that

the employee’s extra-marital conduct made the employee in

some way unfit to perform his or her job and that the state’s

interest in dismissal outweighed the employee’s constitu-

tional rights. The federal court decisions on this issue have

not been uniform, however, so whether the dismissal of a

public employee for off-duty sexual conduct is permissible

may depend on the specific circumstances of the case.

Q. May my employer discriminate against me on the basis

of my sexual orientation?

A. In most places of employment, the answer is “no.” In

1995, Rhode Island became the ninth state to enact legisla-

tion barring discrimination on the basis of sexual orientation

in employment. Under the Fair Employment Practices Act,

gay men, lesbians and bisexuals have the same protections

and remedies as do people discriminated against in employ-

ment on grounds of race, color, religion, sex, disability, age

or country of ancestral origin.

The remedies can include hiring or reinstatement, back pay,

compensatory damages and attorney’s fees.

The employ-

ers covered by FEPA include all government entities, any

Employees in less sensitive positions, on the other hand, may be able

to challenge similar across-the-board bans where there is no evidence

that the criminal record has any bearing on the employee’s perfor-

mance or qualifications for the job.

State civil service laws also give classified employees certain guaran-

tees of job security that can be overturned only for good cause.

State

personnel regulations provide that only convictions “deemed pertinent

to the position” may serve as grounds for refusing to hire an appli-

cant.

This means that the particular circumstances of your case will

determine the propriety of a discharge or failure to be hired.

Personal Lifestyle and Off-Duty Activities

Q. Can an employer prohibit me from smoking off-duty?

A. In almost all instances, no. Basic privacy issues came to the fore

when some employers – allegedly in order to promote the health of

employees and save the employer medical expenses – began making

non-smoking both on and off-duty a condition of employment. In re-

sponse to this particular problem, the General Assembly enacted legis-

lation which states that an employer cannot prevent employees or job

applicants from using tobacco products outside the course of their em-

ployment.

An employee or job applicant who is discriminated against on such a

basis may file suit to obtain relief. The law contains an exemption for

non-profit organizations which, as one of their primary objectives, dis-

courage tobacco use by the general public. In addition, the law has no

effect on no-smoking bans in the workplace.

Q. Can my employer tell me how to dress or wear my hair on the job?

A. If you are a private employee, you generally must follow your em-

ployer’s dress and grooming codes. Even policies that would appear

discriminatory – such as ones requiring short hair on men but not on

women – have generally been deemed permissible as long as they have

some justification in commonly accepted social norms and are reason-

ably related to business needs, such as fostering a good business-

customer relationship.

However, violations of federal law have been

found with regard to a number of other dress and grooming require-

ments where the discriminatory burden is considered particularly great.

For example, a dress code that required female but not male

workers to wear a prescribed uniform which they had to pay

to maintain, was found to constitute sex discrimination.

Other policies that have been held to be impermissible in-

clude rules imposing on female, but not male, flight attend-

ants a ban on wearing eyeglasses,

and forcing employees

to wear sexually provocative clothing.

In addition, “no

beard” policies may have a disparate impact on blacks, be-

cause African-Americans are much more likely to suffer

from a condition called pseudo folliculitis barbae (PFB),

which makes it necessary to refrain from shaving. Thus,

company policies which fail to make exceptions for this

may be illegal.

Exceptions may also apply in the situation of dress policies

that restrict an employee’s ability to wear garments that are

required by his or her religion. Thus, in some recent cases,

courts have upheld the right of Muslim women to wear to

work a head scarf, or hijab, over employers’ objections.

Finally, although it has not arisen in litigation in Rhode Is-

land to this point, dress codes may be subject to challenge

based on a state law prohibiting discrimination on the basis

of “gender-related self image” or “gender-related appear-

ance.”

Public employees may additionally attempt to challenge

dress and grooming codes as a denial of constitutional

rights, although how successful such challenges would be is

unclear. The U.S. Supreme Court, in concluding that a regu-

lation establishing hair grooming standards for police offic-

ers was constitutional, left the door open for other challeng-

es to proceed.

The Court assumed in its opinion that the

Constitution provides individuals some protection in their

choice of personal appearance, but it upheld the police regu-

lation in that case by noting the paramilitary nature of the

employment involved and the strong governmental interests

in promoting uniformity and discipline in such an occupa-

tion. These interests are not likely to be as significant in oth-

er public employment contexts, but the courts as a general

rule have remained reluctant to find reasonable dress and

grooming codes illegal.

Q. Does this mean I can be fired for wearing tattoos or body pierc-

ings?

A. A dress code that bars visible tattoos or body piercings is probably

legal, for the same reasons that dress codes generally are upheld, if it

is applied equally to all employees. However, it could be illegal as

applied to a person who claims such a display is required by a sincere-

ly held religious belief. In those instances, an accommodation of the

employee’s beliefs may be required unless the employer can show it

would impose an undue hardship or cannot be reasonably accommo-

dated. It is important to note, though, that the federal court of appeals

that covers Rhode Island has taken a broader view than some other

courts in defining “undue hardship.” It upheld a company’s decision to

terminate an employee who wished to display multiple facial piercings

as part of her religious beliefs, holding that the adverse effect on the

“the employer’s public image” constituted an undue hardship.

Q. Can I be denied a job because of my physical appearance?

A. It depends. Under the ADA as well as state anti-discrimination

laws, it is illegal to discriminate on the basis of a physiological disor-

der or an employer’s perception that the applicant or employee has

such a disorder. Put another way, an employer may be able to deny

employment to a person based on a physical characteristic (such as

having black hair), but not if that characteristic also constitutes a phys-

ical impairment or is regarded as one. (Of course, other anti-

discrimination laws might be implicated if the physical characteristic

was related to race or national origin.) Thus, a federal appeals court

ruled in favor of a Rhode Island woman’s disability discrimination

claim after she was denied a job with the state solely because she

weighed over 300 pounds. The court ruled that morbid obesity could

be deemed a disability or perceived disability protected under federal

anti-discrimination laws.

Similarly, a person with a cosmetic disfig-

urement is protected from discrimination if the employer regards that

disfigurement as substantially limiting the person’s ability to work.

For example, a court ruled that a ski resort violated disability discrimi-

nation laws when it fired a chambermaid with no natural upper teeth

who refused to wear her dentures to work because they hurt her.

Ul-

timately, the determination of what constitutes illegal discrimination

on the basis of physical appearance will be very fact-specific.