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Employee Privacy: District of Columbia

Employee Privacy requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Authors: Stuart R. Buttrick, Susan W. Kline and Sarah E. Caldwell, Faegre Baker Daniels LLP

Summary

  • Employers are prohibited from conducting surveillance on their employees, unless one party to the conversation consents. See Wiretapping and Monitoring Communications.
  • An employee's privacy is protected by limiting the types of tests that an employer can request an employee to take. See Employee Testing.
  • Although tightly regulated, medical marijuana is legal in the District of Columbia.. But nothing in the law precludes employers from prohibiting its use as a condition of employment. See Medical Marijuana.
  • In general, smoking in the workplace is banned in the District, although exemptions exist that must meet specific regulations. See Smoking in the Workplace.
  • All employers are susceptible to claims of invasion of privacy. See Common Law Invasion of Privacy Claims.
  • Businesses that maintain or handle electronic data containing personal information have a duty to notify District residents of a breach of security relating to their personal information. See Data Breach Security.
  • Criminal records maintained by health care industry employers must be kept confidential, maintained for one year after the subject of the record has ended his or her employment and then the criminal record must be destroyed. See Health Care Industry Criminal Records.
  • Employers must provide employees who desire to breastfeed or express breast milk with privacy to do so. See Breastfeeding.
  • Employers must treat personnel files as confidential information and take steps to protect them. See Personnel Files.

Wiretapping and Monitoring Communications

Under District of Columbia law, any person who intercepts, attempts to intercept, or discloses or uses information known to be the contents of intercepted wire or oral communication commits a crime unless the person is a party to the communication or a party to the communication has consented to the interception. +D.C. Code § 23-542.

It is unlawful to record anyone, without their express and informed consent, who is using a bathroom or restroom, totally or partially undressed, changing clothes, or engaging in sexual activity in a place where the employee has a reasonable expectation of privacy, unless the recording is for security monitoring in any building. If so, there must be signs prominently displayed informing persons that the entire premises or portions of it are under surveillance. +D.C. Code § 22-3531.

Employee Testing

Lie Detector Tests

It is an invasion of employee privacy for any employer to administer, accept, or use the results from a lie detector test inside the District of Columbia or in connection with employment in the District of Columbia, except for the Police, Fire and Corrections Departments, provided the results are verified by other information and the results are not the sole basis for the denial of employment. +D.C. Code §§ 32-901-903. Any employer who administers or uses the results of a lie detector test may be guilty of a misdemeanor subject to a fine or imprisonment, and subject to civil liability +D.C. Code § 32-903.

Genetic Testing

Employers are prohibited from requesting or requiring a genetic test as a condition of employment as well as from seeking to obtain, obtaining or using the genetic information of an applicant for employment. +C.D.C.R. § 4-509.2.

Drug and Alcohol Use and Testing

Certain District of Columbia public employees are required to submit to a drug and alcohol test, including:

  • Public employees holding safety-sensitive positions, meaning the employee (a) has direct contact with children or youth; (b) Is entrusted with the direct care and custody of children or youth; and (c) whose performance of his or her duties in the normal course of employment may affect the health, welfare or safety of children or youth;
  • Public employees who have had a reasonable suspicion referral, which occurs when an employee in a safety-sensitive position is referred for testing; and
  • Public employees whose on-duty vehicular or other type of accident resulted in personal injury or property damage and could reasonably be believed to be caused by the use of drugs or alcohol.

+D.C. Code § 1-620.31; +D.C. Code § 1-620.32.

The District shall subject District employees in safety-sensitive positions to random testing, unless stricter requirements are applicable to the agency. +D.C. Code § 1-620.32(b).

District supervisors shall be trained in substance abuse recognition and shall receive a second opinion from another supervisor prior to making a reasonable suspicion referral. +D.C. Code § 1-620.32(c)

Employees subject to drug and alcohol testing must be given at least thirty (30) days written notice of the implementation of a drug and alcohol testing program. Upon receipt of the notice, each employee shall be given one opportunity to seek treatment for a drug or alcohol problem. +D.C. Code § 1-620.32(d).

Any District government employee who operates a motor vehicle in the performance of his or her employment within the District of Columbia shall be deemed to have given his or her consent to the testing of the employee's urine or breath for the purpose of determining drug or alcohol content whenever a supervisor has probable cause or a police officer arrests such person for a violation of the law and has reasonable grounds to believe such person to have been operating or in physical control of a motor vehicle within the District while that person is intoxicated, or while under the influence of an intoxicating liquor or any drug or combination thereof, or while that person's ability to operate a motor vehicle is impaired by the consumption of intoxicating liquor. +D.C. Code § 1-620.33.

Each private provider that contracts with the District of Columbia to provide employees to work in safety-sensitive positions and each private entity licensed by the District government that has employees who work in safety-sensitive positions shall establish mandatory drug and alcohol testing policies and procedures that are consistent with the requirements of the drug testing law for District employers. +D.C. Code § 1-620.36

Medical Marijuana

All employers, particularly those who are required to conduct drug testing on their employees, should be aware that medical marijuana is permitted in the District of Columbia. A qualifying patient, caregiver of a qualifying patient or minor qualifying patient with parental consent can possess and administer medical marijuana as well as possess and use paraphernalia under District of Columbia law. +D.C. Code § 7-1671.02; +C.D.C.R. § 22-C300. A qualifying patient either has a qualified medical condition or is going through qualified medical treatment. +D.C. Code § 7-1671.01; +C.D.C.R. § 22-C9900.1. Examples of qualified medical conditions include:

  • Human immunodeficiency virus (HIV);
  • Acquired immune deficiency syndrome;
  • Glaucoma;
  • Multiple sclerosis; and
  • Cancer.

+D.C. Code § 7-1671.01(17); +C.D.C.R. § 22-C9900.1.

Examples of qualifying treatments include:

  • Chemotherapy;
  • The use of azidothymidine or protease inhibitors; and
  • Radiotherapy.

+D.C. Code § 7-1671.01(18) ; +C.D.C.R. § 22-C9900.1.

The District of Columbia Department of Health has the authority to revoke benefits granted under the medical marijuana regulations. +C.D.C.R. § 22-C1000 et seq. Individuals not authorized to possess or administer medical marijuana or possess or use paraphernalia may be fined. In addition, individuals knowingly and wrongfully claiming to be protected under the medical marijuana statute may be fined up to $1,000. +D.C. Code § 7-1671.08.

Employers should be cognizant that District of Columbia law allowing for the use of medical marijuana does not prevent prosecution for the same conduct under federal law. +C.D.C.R. § 22-C200.4(b)

Nothing in the District's laws preclude employers from prohibiting the use of marijuana as a condition of employment.

Marijuana Testing

The District of Columbia Council passed on an emergency basis the Prohibition of Pre-Employment Marijuana Testing Emergency Act of 2014, which only permits an employer to test a prospective employee for marijuana use after extending a conditional employment offer.  The law expired on March 18, 2015, but was extended by the Prohibition of Pre-Employment Marijuana Testing Congressional Review Emergency Act of 2015, which expires June 29, 2015.  See +2015 Bill Text DC B. 94.

The District of Columbia Council passed a permanent measure, the Prohibition of Pre-Employment Marijuana Testing Act of 2015, which was signed by the mayor on May 22, 2015. The law prohibits an employer from testing a prospective employee for marijuana use until after a conditional offer of employment has been extended, unless otherwise required by law.  However, the law does not:

  • Affect employee compliance with employer workplace drug policies;
  • Require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace or at any time during employment;
  • Interfere with federal employment contracts; or
  • Prevent an employer from denying a position based on a positive test for marijuana.

The law becomes effective following a 30-day period of congressional review, and publication in the District of Columbia Register.  The projected effective date is July 11, 2015. See +2015 Bill Text DC B. 25.

Smoking in the Workplace

Except for limited exceptions, smoking in the workplace is banned in the District of Columbia. Employers in violation of the smoking ban may be subject to a fine. Even in workplaces exempt from the smoking ban (e.g., taverns, restaurants and tobacco bars), proper ventilation requirements under the District's Construction Codes must be followed. Employers are prohibited from discriminating against an employee who requests to work in a smoke-free area. [LexisNexis:"D.C. Code §§ 7-1703-1703"].02 See Employee Management > Employee Handbooks - Work Rules - Employee Conduct: District of Columbia > Smoking in the Workplace .

Additionally, Employers cannot refuse to hire, discharge, or discriminate against individuals in compensation or other employment terms, conditions, or privileges of employment because of their use of tobacco or tobacco products unless justified as a bona fide occupational qualification. +D.C. Code § 7-1703.03

Common Law Invasion of Privacy Claims

Like any individual in the District of Columbia, all employers are susceptible to liability for the tort of invasion of privacy. The District recognizes four common law claims for invasion of privacy:

  1. Intrusion upon one's physical solitude or seclusion;
  2. Publicity that places someone in a false light in the public eye;
  3. Misappropriation of someone's name or likeness; and
  4. Public disclosure of private facts.

See Vassiliades v. Garfinckel's, Brooks Bros., +492 A.2d 580 (D.C. 1985).

All employers in the District of Columbia must be cognizant of the potential liability that any of these causes of action may create. Particularly, an employer's misuse or reckless protection of an employee's social security number or other identifying information may support an invasion of privacy claim. See Randolph v. ING Life Ins. & Annuity Co., +973 A.2d 702 (D.C. 2009). Employers should therefore limit access to employee social security numbers and take necessary precautions to safeguard such information. Employees who claim invasion of their privacy generally have one year to file their lawsuit. +D.C. Code § 12-301.

Data Breach Security

All companies doing business in the District of Columbia who maintain or handle electronic data containing personal information have a duty to notify District residents of a breach of security relating to their personal information. +D.C. Code §§ 28-3852(a) et seq. If the employer is required to notify more than one thousand residents, the employer must also notify all consumer reporting agencies under the Fair Credit Reporting Act. +D.C. Code § 28-3852(c).

Under District law, personal information means:

  • Any number or code or combination of numbers or codes, such as passwords, that allows access to or use of an individual's financial or credit account; or
  • Electronic data, including all of the following:
    • An individual's first name or first initial and last name;
    • Phone number;
    • Address; and
    • Any one or more of the following data elements:
      • Social security number;
      • Driver's license number or District of Columbia Identification Card number; or
      • Credit card number or debit card number.

Exempt from this definition is any information that is lawfully made available to the general public from federal, state or local government records. +D.C. Code § 28-3851(3).

Any District resident who is injured because of an employer's breach of security relating to his or her personal information contained on electronic data may bring a civil action against the employer. The resident may seek to recover actual damages, the costs of the action and reasonable attorney's fees; however, they may not recover damages for pain and suffering. +D.C. Code § 28-3853(a).

In addition, the Attorney General may seek temporary or permanent injunctive relief and an award of restitution for property lost or damages suffered by District of Columbia residents for breaches of security. However, in such an action, the Attorney General is limited to recovering $100 for each violation, the costs of the action and reasonable attorney's fees. +D.C. Code § 28-3853(b).

Health Care Industry Criminal Records

Criminal records maintained by any employers in the health care industry on employees who are not licensed professionals must be kept confidential. The records can only be released to:

  • The Mayor or his designate;
  • The subject of the record;
  • Comply with a court order; or
  • Someone with written consent from the subject of the record.

+D.C. Code § 44-552(c).

Employers in the health care industry must maintain all criminal records they receive for up to a year after the employment of the person to whom the record relates and then destroy the record. +D.C. Code § 44-552(d).

Breastfeeding

All employers in the District of Columbia must provide security and privacy for lactating employees. Such employees must make reasonable efforts to provide a sanitary room or other location in close proximity to the work area, other than a bathroom or toilet stall, in which to express breast milk. The location:

  • May include a childcare facility in close proximity to the work area; or
  • If at the work area, shall have adequate lighting, ventilation and an electrical outlet (if necessary for a pumping device), and may, but is not be required to have, a lock for privacy, a sink with a safe water source, a comfortable chair, a small table and a clock.

Also, employers must allow employees to bring a small refrigerator or freezer to store milk. Furthermore, unless an undue hardship would result, employers must:

  • Provide reasonable daily break periods, paid or unpaid, so that the employee may breastfeed her child or express breast milk to maintain milk supply or relieve physical discomfort; and
  • Afford flexible schedule, job-sharing or telecommuting arrangements, if none are already afforded.

+D.C. Code § 2-1402.82, +C.D.C.R. § 4-518.5.

Personnel Files

All employers must secure all personnel files and other documents that contain information susceptible to use for a discriminatory purpose and shall allow access to such files only on a need to know basis. +C.D.C.R. § 4-506.10.

District of Columbia government employers must make personnel information available upon request to appropriate personnel or law enforcement unless the disclosure would constitute an invasion of personal privacy or is otherwise prohibited under law. [LexisNexis: "D.C. Code § 1-631".03.

District of Columbia employees have a right to the information in their personnel file, but any such disclosure must be made in the presence of an agency official. Agencies shall not disclose the following to an employee:

  • Information which has been received on a confidential basis from a person under an agreement that the identity of the source of the information will not be disclosed: Provided, however, that such information may be disclosed if all information identifying the source of the information is deleted in such a manner to positively preclude identity of the source;
  • Medical information, which, in the judgment of the employee's physician would be injurious to the health of the employee, if disclosed;
  • Criminal investigative reports;
  • Suitability inquiries and confidential questionnaires; and
  • Test and examination materials which may continue to be used for selection and promotion purposes: Provided, however, that the description of test and general results shall be disclosed.

+D.C. Code § 1-631.05

Future Developments

As of December 2014, employers with more than 10 employees in the District of Columbia may not ask applicants about their criminal history on an initial job application. In fact, they must refrain from doing so until after making a conditional job offer under the Fair Criminal Record Screening Act of 2014. +2013 D.C. ALS 422

The Act also bans inquiries at any point in the selection process into arrests or criminal accusations against an applicant which are not pending or did not result in a conviction. Even after extending a conditional offer, the ordinance prohibits covered employers from withdrawing that offer or taking other action based on a criminal record except for a "legitimate business reason." The employer's determination of a legitimate business reason must be reasonable in light of the following factors:

  • The specific duties and responsibilities related to the job being sought;
  • The bearing, if any, the criminal offense for which the applicant was convicted will have on his or her ability to perform such duties or responsibilities;
  • The time elapsed since the criminal offense occurred (along with the seriousness);
  • The applicant's age at the time the offense occurred;
  • The frequency and seriousness of the offense; and
  • Any information produced by the applicant in regard to rehabilitation or good conduct since the criminal offense occurred.

If a prospective employee believes a conditional offer was terminated based on a criminal conviction, the applicant may request and the employer must provide within 30 days after the termination a copy of all records the employer obtained in considering the applicant, including criminal records, and a notice advising the applicant of his or her opportunity to file an administrative complaint with the Office of Human Rights.

There is no right to sue an employer in court under the Act. However, if a violation is found to have occurred, the Office on Human Rights may impose the following penalties:

  • For employers with 11 to 30 employees, a fine of up to $1,000;
  • For employers with 31 to 99 employees, a fine of up to $2,500; or
  • For employers with 100 or more employees, a fine of up to $5,000.

On November 4, 2014, voters approved a ballot measure to legalize the recreational use and possession of marijuana in small amounts. While the law does not permit the sale of marijuana in the District of Columbia, it allows adults 21 and older to possess up to two ounces of marijuana and up to six marijuana plants for personal use.

Earlier in 2014, the District had passed a law to decriminalize marijuana use. This new measure takes things a step further. However, there is nothing that would prevent an employer from maintaining a drug-free workplace or that would require them to revise their drug testing policies. Public use is still prohibited as well. The law is subject to a 60-day congressional review period so would not take effect prior to 2015.

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Additional Resources

Employee Management > Employee Handbooks - Work Rules - Employee Conduct