Want to Read More? To continue reading this article, please Log in or Register Now

Employee Privacy: Florida

Employee Privacy requirements for other states

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

Author: Phillip B. Russell, Ogletree Deakins

Summary

Monitoring and Protecting Employee Privacy

Florida Constitutional Right to Privacy and Protection Against Unreasonable Search and Seizure

Florida's Constitution adopts the protections against unreasonable search and seizure afforded by the Fourth Amendment to the United States Constitution. These have been interpreted to limit a public employer's ability to monitor employee activities and electronic communications in situations where the employee has a reasonable expectation of privacy. The constitutional protection against search and seizure does not apply to searches conducted by private employers unless the employers are agents of the government.

When the public employer has a clear policy allowing the workplace computer to be monitored, an employee who uses the computer does not have a reasonable expectation of privacy under the Fourth Amendment. Without such a clear policy, the circumstances of the workplace will determine whether the government employee has an expectation of privacy.

Government searches related to investigations of workplace rule violations are judged by a reasonableness standard, based on the surrounding circumstances. As a general matter, a government employee's office space is covered by Fourth Amendment protections. Government searches that are limited to retrieving work-related materials or to investigate violations of workplace rules are generally viewed as reasonable and normal and do not violate the Fourth Amendment. This same standard applies to searches of electronic materials such as voice mail and text messages.

Common Law Claims for Invasion of Privacy

Florida common law recognizes claims for invasion of privacy. Lawsuits for invasion of privacy affect private employers mostly in the following four categories:

  1. Appropriation of the names and likeness of another person (for example, an employer may not use the photographic image of employees in advertisement without permission);
  2. Unreasonable intrusion into the seclusion of another individual (this may include eavesdropping on private conversations, certain types of investigations or examinations, opening "private or personal" mail, or searching an employee's office desk, handbag or wallet; it also may include other employee surveillance or investigation of employees; the intrusion, however, must relate to an employee's private interests and the employee must be entitled to privacy under those specific circumstances);
  3. Unreasonable publicity regarding the private life of another individual (an employer may be liable for public disclosure of an employee's private facts; these may include intimate details of an individual's life such as medical records [which may also violate the HIPAA] without the employee's knowledge and/or consent); and
  4. Publicity that unreasonably places a person in a false light before the public - this is analogous to defamation (an example is wrongfully accusing an employee of theft, sexual harassment or other negative acts).

An employer can be held liable to an injured employee for compensatory damages and, in limited instances, punitive damages.

In Florida, there are circumstances under which an employer may share employee information with others within the organization who may have a need to know certain private information about the employee in question. This qualified privilege protects an employer acting honestly, in good faith and in its own legitimate interests.

Florida's Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008

Most employers in Florida are prohibited from searching private vehicles parked in the employer's parking lot in search of weapons. A policy allowing searches for other items due to legitimate business reasons needs to carefully distinguish those searches from those prohibited by Florida law and should notify the employee that the employer shall not take any adverse employment action against the employee if a weapon is discovered during the course of an otherwise permissible search.

Employers are also prohibited from questioning employees as to whether there is a gun in a private vehicle and employers may not make employment contingent on whether or not the employee carries a gun in his or her vehicle that is parked in the employer's parking lot.

Florida's Counterpart to the Federal Electronic Communications Privacy Act

It is a crime in Florida to intercept and disclose wire, oral or electronic communications. There is an exception for oral communications made where there is no expectation of privacy and for public oral communications made at a public meeting. Consent must be obtained from all parties for the interception or disclosure of the communication. +Fla. Stat. § 934.02.

Florida statutes provide protections against several categories of computer surveillance or destructive activities. Fla. Stat. §s 815.04(1) and (2) prohibit the unauthorized willful and knowing modification or destruction of data, programs or supporting documentation on a computer system or network. +Fla. Stat. § 815.04(3) prohibits the unauthorized willful and knowing disclosure or taking of data, programs or supporting documentation of a trade secret or confidential information from a computer system or network. +Fla. Stat. § 815.06(1) prohibits anyone from accessing, disrupting or denying service, destroying or taking equipment or supplies, or introducing any computer contaminant to a computer.

Criminal Penalties for Video Voyeurism

Florida law makes it a crime to secretly videotape, record or film an individual who is dressing, undressing or privately exposing his or her body at a place and time when that individual has a reasonable expectation of privacy. The law contains an exception for a security system where written notice is conspicuously posted on the premises stating that a video surveillance system is installed or when a video surveillance device is clearly and immediately obvious.+Fla. Stat. § 877.26.

Special Concerns for Unions

+Fla. Stat. § 447.03 places limitations on an employer's ability to monitor employee communications that are analogous to those found in the National Labor Relations Act.

Application/Interview Inquiries

Background Checks

In Florida, employee privacy rights are balanced against the employer's need to prevent possible claims of negligent hiring. The Florida Tort Reform Act of 1999 provides employers with a defense to negligent hiring claims if employers conduct effective pre-hiring background checks. An employer's obligation to reasonably investigate an applicant depends on the nature of the applicant's expected contact with the public and other employees.

Not-for-profit and for-profit organizations that provide care for children, the elderly and the disabled may request that the Department of Law Enforcement provide background screening information including criminal records on applicants. The organization must notify the applicant that the organization may obtain such records. The applicant has the right to contest the accuracy of the records.

Except for jobs in law enforcement, fire fighting or in correctional agencies, state government employers may not deny employment and licensure solely because of a conviction unless the conviction was for a felony or a first degree misdemeanor that is directly related to the position sought by the applicant.

Various Florida statutes provide for mandatory background screenings for certain positions of trust, certain health professions, and positions involving the care of children, the elderly or the disabled. For example, mandatory screening is required related to:

Arrest and Conviction Records

In Florida, individuals with a sealed criminal history record may lawfully deny or fail to acknowledge arrests covered by sealed records, except when applying for positions with direct contact with children, the developmentally disabled, the aged or the elderly, and most healthcare positions. See Background Checks.

Drug and Alcohol Testing

In order to qualify for a drug-free workplace program designation and qualify for workers' compensation premium discounts provided under +Fla. Stat. § 627.0915, and to deny medical and indemnity benefits under the workers' compensation laws, a private employer must implement drug testing that conforms to the standards and procedures established in +Fla. Stat. § 440.102(2) and all applicable rules adopted pursuant to that statutory section. To qualify, employers must give notice to employees and job applicants and provide them with the testing procedures, including how to object to the results and explain positive results, prior to testing. +Fla. Stat. § 440.102(3).

Additional drug testing standards for public employees are established by statute. Florida's Constitution places limits on government employers' ability to conduct drug testing of their employees. The government employer must have a reasonable suspicion that the employee is using drugs in order to conduct a drug test. Government employers may not perform random drug testing on public employees.+Fla. Stat. § 112.0455(7) & (8) (u).

Medical Marijuana

An amendment to the state constitution permits the use of medical marijuana, including smoking, by qualified registered patients with a debilitating medical condition. Fla. Const. Art. X, § 29(b)(1); +Fla. Stat. § 381.986(1), as amended by +2017 Bill Text FL S.B. 8A

Under the law, individuals suffering from the following debilitating medical conditions may be qualified to use medical marijuana:

  • Cancer;
  • Epilepsy;
  • Glaucoma;
  • Positive HIV/AIDS status;
  • Post-traumatic stress disorder, (PTSD);
  • Amyotrophic lateral sclerosis;
  • Crohn's disease;
  • Parkinson's disease;
  • Multiple sclerosis;
  • Other debilitating medical conditions of the same kind or class as, or comparable to, those listed above, and for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient;
  • Terminal conditions diagnosed by a physician other than the qualified physician issuing the physician certification; or
  • Chronic nonmalignant pain.

Fla. Const. Art. X, § 29(b)(1); +Fla. Stat. § 381.986 as amended by +2017 Bill Text FL S.B. 8A.

Under the law, medical use does not include possession, use, or administration of marijuana that was not purchased or acquired from a medical marijuana treatment center. Further, medical use does not include use at a qualified patient's place of employment unless permitted by the employer.

The law contains myriad protections for employers. An employer is still permitted to establish, continue, or enforce a drug-free workplace program or policy. Additionally, an employer is not required to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana. Medical marijuana is not reimbursable under the Florida Workers' Compensation Law. Lastly, the law does not create a cause of action against an employer for wrongful discharge or discrimination. Fla. Const. Art. X, § 29(c); +Fla. Stat. § 381.986 as amended by +2017 Bill Text FL S.B. 8A. See Disabilities (ADA): Florida and Preemployment Screening and Testing: Florida.

Using medical marijuana in any form, including smoking, is generally prohibited in a public place or in an enclosed indoor workplace, as defined by the Florida Clean Indoor Air Act is prohibited. +Fla. Stat. § 381.986(1)(j), as amended by +2019 Bill Text FL S.B. 182.

Recordkeeping and Safeguarding Employee Records and Confidential Information

The Florida Information Protection Act of 2014 (FIPA), effective July 1, 2014, +Fla. Stat. § 501.171 made significant changes to Florida's data breach notification law and repealed the prior law +Fla. Stat. § 817.5681. Under the new law, "personal information" is defined as an individual's first name or first initial and last name in combination with a social security number,driver license or identification card number, passport number, military identification number, or other similar number issued by the government and used to verify identity; a financial account number or credit or debit card number, in combination with any required security code, access code, or password needed to permit access to an individual's financial account; any information regarding an individual's medical history, mental or physical condition, or medical treatment or diagnosis by a health care professional; an individual's health insurance policy number or subscriber identification number and any unique identifier used to identify the individual; a user name or email address, together with a combination, password or security question and answer that would allow access to an online account. Further, it requires reasonable data protection and secure disposal of customer records, physical or electronic, containing personal information. The definition of "breach" is changed from "unlawful and unauthorized acquisition" of personal information to "unauthorized access," of such information. Additionally, the deadline for notifying individuals affected by breach is reduced from 45 days to 30 days after discovery of the breach. It also requires notification to the Florida attorney general regarding breaches affecting more than 500 individuals in Florida and a report to the appropriate consumer protection agency when a breach results in notification to an affected class of 1,000 or more people. An individual who violates the law maybe subject to civil penalties if breach notification is not timely provided. However, the law does not create a private right of action.

Future Developments

There are no new developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.

Additional Resources

Employee Management > Employee Privacy