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Straight
Track #167
| Workplace Privacy & Personnel Records Alan
Fisher
Hoey & Farina Attorney
1-888-425-1212 We receive many questions from
railroaders about workplace privacy and the right to access
personnel records. In my profession career, I have served as an
arbitrator for nine years in the private and public sectors. |
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In this position, I would hear arguments concerning the
invasion of an individual's privacy rights in the workplace, the
employer's failure to allow an employee access to his personnel record, or
the improper use of the personnel file by the employer. These same issues
are very present today in the rail industry.
A Right To Privacy?
Arbitrators have attempted to strike a balance between
the personal rights of the employee and the rights of the company in the
conduct of the business. Where employees are governed by a collective
bargaining agreement, the parties have the ability to negotiate what
specific conduct by the employer is acceptable in the workplace. When such
issues as workplace surveillance or employee searches have occurred,
arbitrators have held that the employer must not act in a discriminatory,
capricious, arbitrary, or unreasonable manner, but must have a reasonable
basis for its actions. Although negotiated agreements can allow employers
to conduct these types of activities, the employer's conduct may still be
subject to state and federal laws governing employees' rights in the
workplace.
Generally speaking, if a collective bargaining agreement
is silent on a particular privacy issue or employer conduct, an employer
may not unilaterally institute a practice without bargaining with the
union. If the employer elects to do so the union should protest the
company's actions immediately in writing. The grievance may not be
sustained in arbitration but it is important to bring “notice” to the
company that its unilateral action is not acceptable to the represented
employees.
In private arbitration matters, labor and management
representatives have disagreed as to the admissibility in arbitration of
evidence obtained by breaking into employee's locker, forcible search of
his person, secret surveillance, and other such means. The broad question
for an arbitrator to decide has been whether, absent a constitutional
right or a right specified in the contract, to reject evidence because the
manner in which it has been obtained is reprehensible or distasteful to
the arbitrator or because it is the arbitrator's opinion that
labor-management relations would be better served by such exclusion. In
response arbitrators have differed significantly as to the use of such
evidence, though they have been inclined to accept and rely upon such
evidence.
Reviewing Personnel Records
Labor agreements also frequently establish conditions on
the maintenance and disclosure of personnel records. The agreements may
specify the types of records and the length of time they may be included
in employees' personnel files, the rights of access by employees to their
files, and so forth. A supervisor's maintenance of private records on his
subordinates for later use in personnel transactions may violate a
provision requiring that all such records be kept in the personnel files
accessible to the employees.
In Illinois, state law provides an employee has the
right to seek review of his personnel records up to two times per year and
for up to one year after leaving employment. Although certain
documentation is exempt, an employee must be provided an opportunity to
inspect his personnel records. If the employer refuses, the employee may
file a complaint with Illinois Department of Labor (IDOL).
The
Illinois Personnel Records Review Act also allows an employee
to obtain a copy of the information or part of the information contained
in your record. The employer is allowed to charge a fee for providing a
copy of the report; however, the fee is limited to the actual cost of
duplicating the information.
At Hoey & Farina, we have received questions on
these issues and wanted to share an opinion with you. We encourage you to
review your collective bargaining agreement to better understand your
specific rights regarding workplace privacy and access to your personnel
record. Please understand that you, the working railroader, may have to
comply with certain written procedures set by the railroad before you will
be given access to your files.
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