50-State Survey Employment Privacy Outline

SURVEY OF [YOUR STATE] EMPLOYMENT PRIVACY LAW
Survey Preparers
Name of Firm
Firm Address
Telephone ; Telecopier

(With Developments Reported Through November 1, 200x)

GENERAL COMMENTS

[including comments or caveats regarding structure of local court system, the manner in which local cases are reported or cited, etc.] Note: Any bracketed material in this Topic Outline is considered as instructions to the Survey preparers and is not reproduced in the final Survey reports.

SIGNIFICANT DEVELOPMENTS SINCE THE 200x SURVEY

[Please discuss any significant developments which have occurred since the last update of the chapter. Text should appear in bold, and should also be placed in appropriate outline section below.]

I. GENERAL LAW OF PRIVACY

A. Legal Basis of Privacy Claims

[note whether constitutional, statutory, or common law]

B. Causes of Action

[describe whether jurisdiction has explicitly accepted/rejected the tort and, if accepted, the substantive elements of the tort and the applicable procedural requirements, including statute of limitations]

1. Misappropriation/Right of Publicity.

2. False Light.

3. Publication of Private Facts.

4. Intrusion.

C. Other Privacy-related Actions

[including whether accepted in the jurisdiction, substantive and procedural requirements, and available remedies; any applicable privileges or defenses, especially those established by cases rejecting "end runs" around the protection of privacy or other law]

1. Intentional Infliction of Emotional Distress

2. Interference With Prospective Economic Advantage

3. Prima Facie Tort

II. EMPLOYER TESTING OF EMPLOYEES

[including which tests have been specifically rejected or approved and any procedures employers must follow]

A. Psychological or Personality Testing

1. Common Law and Statutes.

2. Private Employers.

3. Public Employers.

B. Drug Testing

1. Common Law and Statutes.

2. Private Employers.

3. Public Employers.

C. Medical Testing

1. Common law and statutes

2. Private Employers.

3. Public Employers.

D. Polygraph Tests

E. Fingerprinting

III. SEARCHES

[including applicable constitutional or statutory provisions]

A. Employee's Person

1. Private Employers.

2. Public Employers.

B. Employee's Work Area

C. Employee's Property

1. Private Employers.

2. Public Employers.

IV. MONITORING OF EMPLOYEES

A. Telephones and Electronic Communications

[including whether law requires consent of all parties or only one party]

1. Wiretapping (Telephone).

2. Electronic Communications (E-mail).

3. Other Electronic Monitoring. [including monitoring of employees key strokes, signing on and off, etc.]

B. Mail

C. Surveillance/Photographing

V. ACTIVITIES OUTSIDE THE WORKPLACE

A. Statute or Common Law

B. Employees' Personal Relationships

1. Romantic Relationships Between Employees.

2. Sexual Orientation.

3. Marital Status.

C. Smoking

D. Blogging

VI. RECORDS

[including record-keeping requirements and public accessibility of the records]

A. Personnel Records

B. Medical Records

C. Criminal Records

D. Subpoenaes

VII. ACTIONS SUBSEQUENT TO EMPLOYMENT

[viability of claims made after conclusion of the employment relationship]

A. References

B. Non-compete agreements.

VIII. PROCEDURAL ISSUES

A. Statutes of Limitations

[including whether same period applies to privacy, negligent hiring/retention/supervision, intentional infliction of emotional distress, and prima facie tort; if different, whether other claims may be used to circumvent shorter privacy limitation period]

B. Pleading Requirements

[including degree of specificity required]