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Pauline T. Kim - One of the best experts on this subject based on the ideXlab platform.

  • Data Mining and the Challenges of Protecting Employee Privacy Under U.S. Law
    Comparative Labor Law and Policy Journal, 2019
    Co-Authors: Pauline T. Kim
    Abstract:

    Concerns about Employee Privacy have intensified with the introduction of data mining tools in the workplace. Employers can now readily access detailed data about workers’ online behavior or social media activities, purchase background information from data brokers, and collect additional data from workplace surveillance tools. When data mining techniques are applied to this wealth of data, it is possible to infer additional information about Employees beyond the information that is collected directly. As a consequence, these tools can alter the meaning and significance of personal information depending upon what other information it is aggregated with and how the larger dataset is analyzed. With data mining, individual Privacy may be threatened not by the types of information actually collected, but because of what can be inferred from it. This poses a challenge for the law, which often conceptualizes the harm of Privacy intrusions in terms of the sensitivity or highly personal nature of information collected or disclosed. This article explores this dilemma by examining three examples of Employee Privacy protection under US law: anti-discrimination law’s protection of medical and genetic information, the common law Privacy tort’s protection of embarrassing or humiliating intrusions or disclosures, and the Fair Credit Reporting Act’s protection against erroneous data. These laws all rest on the assumption that particular information can be identified as problematic and protected. However, because data mining techniques can infer new information, this approach will be largely ineffective in addressing the Privacy threats posed by these technologies.

  • Electronic Privacy and Employee Speech
    Chicago-Kent Law Review, 2012
    Co-Authors: Pauline T. Kim
    Abstract:

    The boundary between work and private life is blurring as a result of changes in the organization of work and advances in technology. Current Privacy law is ill-equipped to address these changes and as a result, Employees’ Privacy in their electronic communications is only weakly protected from employer scrutiny. At the same time, the law increasingly protects certain socially valued forms of Employee speech. In particular, collective speech, speech that enforces workplace regulations and speech that deters or reports employer wrong-doing are explicitly protected by law from employer reprisals. These two developments — weak protection of Employee Privacy and increased protection for some socially valued forms of Employee speech — are at odds because Privacy and speech are closely connected. As Privacy scholars have emphasized, protecting Privacy promotes speech values by granting individuals space to explore and test new ideas, and to associate with like-minded others — activities that are often important precursors to public speech. Similarly, in the workplace context, some measure of Privacy to explore ideas and communicate with others may be necessary to ensure that Employees actually speak out in socially valued ways. Ironically, then, the law is simultaneously expecting more from Employee speech and protecting Employee Privacy less, even though the latter may be necessary to produce the former.

  • The Story of Luck v. Southern Pacific Transportation Co.: The Struggle to Protect Employee Privacy
    2006
    Co-Authors: Pauline T. Kim
    Abstract:

    In the mid-1980's, urinalysis drug testing of workers by government and private employers expanded rapidly, provoking a spate of lawsuits challenging their legality. The high profile cases involved constitutional challenges based on the Fourth Amendment's prohibition of unreasonable searches and seizures. For the typical private sector Employee, however, constitutional arguments were unavailable, and a worker who wished to challenge mandatory workplace drug testing had to rely primarily on existing common law doctrines. The Story of Luck tells of one such worker and how one California court of appeal attempted to fashion a framework for analyzing Employee Privacy claims under the common law. Barbara Luck was an ordinary worker, arriving at work on an ordinary day, when she was confronted with the unexpected request that she produce a urine sample for testing, even though her employer admitted that it had no basis for suspecting her of drug use and had no complaints about her job performance. When she objected, she was first suspended, then terminated from her job. Her subsequent lawsuit raised the issue of whether an employer could require an Employee in a non-safety-sensitive job to submit to suspicionless urinalysis testing, or whether such testing infringed the Privacy rights of the Employee. Luck's suit alleged that her employer's requirement that she submit to drug testing violated her right to Privacy and that she was wrongfully discharged when she refused to comply. A jury agreed, awarding her nearly a half million dollars in damages. On appeal, the California court of appeal directly confronted the tension between what it acknowledged was Luck's substantial interest in Privacy and the law's traditional deference to an employer's decision to discharge a worker. Although the court of appeals ultimately upheld the jury award, it did so in a way that weakened Employee Privacy rights in the long run. The judges who decided the case produced a deeply ambivalent opinion. On the one hand, it recognized the fundamental nature of Privacy and acknowledged that urinalysis testing infringed that right in significant ways. On the other hand, it exhibited a reluctance to permit Employees to fully vindicate that right vis a vis their employers by confining its approval of the jury's verdict to a narrow contract analysis and rejecting a potentially more expansive public policy tort claim. In this way, the decision clearly illustrates the deep tension between recognition of basic Employee rights of Privacy and the traditional rule of employment-at-will.

  • Collective and Individual Approaches to Protecting Employee Privacy: The Experience with Workplace Drug Testing
    Louisiana Law Review, 2006
    Co-Authors: Pauline T. Kim
    Abstract:

    This contribution to a symposium on workplace Privacy asks what difference it makes to think about workers' rights under a collective as opposed to an individual rights model in a particular context: that of protecting Employee Privacy. More specifically, it undertakes an examination of the range of disputes between employers and Employees over workplace drug testing in the late 1980's and the 1990's, focusing on the differences between cases brought with union involvement and those brought by individual workers acting alone. In doing so, it asks how collective forms of disputing about drug testing differed from individual approaches, and whether these differences affected the ability of workers to assert and protect their interests in personal Privacy. What this examination suggests is that unions were far more likely than individual litigants to bring broad-based challenges intended to benefit the workforce as a whole; however, their ability and willingness to do so appeared to depend heavily on both the legal and the bargaining environment. Over time, union-initiated challenges increasingly focused on the application of drug testing policies to particular workers rather than class-wide challenges. Union involvement also influenced how these challenges were framed in legal terms. Disputes channeled through the collective bargaining system emphasized workers' interests in job security, while an individual rights approach more often framed the issue in dignitary terms, alleging claims such as invasion of Privacy, defamation or intentional infliction of emotional distress. And although individual litigants occasionally obtained damage awards, they primarily brought after-the-fact challenges to the implementation of drug testing policies rather than seeking prospective, class-wide relief. This exploration suggests that individual Privacy rights are not mere substitutes for collective mechanisms that aggregate worker interests. However, deciding how collective and individual rights should be coordinated raises difficult questions requiring further study, including more empirical work to better understand the tradeoffs involved.

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