The Importance of Privacy and Compliance - Report Example

The importance of privacy and compliance Confidential human resource records Human resource records refer to the documents that any organization should retain and maintain regarding the history of employment of each employee that has ever worked for the organization (Calfee and Griswold LLP, 3). Depending on the nature of the industry or sector of the economy under which an employer operates, the documents necessary for maintaining Human Resource records may differ from one organization to the other. However, there are basic documentations that every employer must maintain to comprise the Human Resource records. The provision for which documents require to be maintained may vary from one state to the other or from one government agent to the other. Summary of the Federal Laws on Hyman Records The human resource record requirements under the Federal Laws have been summarized under Title 29 CFR Part 516 of the Fair Labor Standards Act (FLSA) (1994), which outlines the necessary items that should be included in the employee records and maintained by the employers for a minimum of a certain stipulated period (USDOL, n.p.). According to the FLSA law, the employer should keep employees information related to the full names and the social security number, the employees age, address, gender and occupation and the hours of work per day and in a week (USDOL, n.p.). Additionally, the employers should also maintain information related to the date of recruitment, any special conditions related to the recruitment, the additions or deductions on an employees pay, the total wages payable per period and the date of payment and the pay period that the payment is related to (USDOL, n.p.). While the FLSA is the basic law providing for the requirements of human resource records to be maintained by the employer, there are other laws that provide specific requirements in addition to the basic information mentioned above. Summary of the Ohio State laws on Human Resource Records According to clause (e) of the Ohio Employment Law titled Employee Records, it is required that an employer should maintain employees record for at least three years starting the date of employment, which should constitute the name, the address and the occupational description for which the employee has been hired, including the date when the employee was hired (Calfee and Griswold LLP, 4). In addition, the law also provides that the employer should maintains as part of the human Resource Records the rate of pay of the employee, the number of hour of work of the employee for each day/per week and the amount paid per every pay period, including any incremental schedule applicable (Calfee and Griswold LLP, 4). Further, in addition to the basic information of the employee required under clause (e) of the Ohio Employment Law, the law also provides that under clause (e) (i), every employer should maintain as part of the employee record all the information and documentation related to hiring, promotion and the discharge document for employees for at least a period of 6 years (Calfee and Griswold LLP, 4). These records should entail the job advertisement notices, the employee application letters, hiring resumes, and any documents related to disciplining, promotion, transfer or discharge of the employee (Calfee and Griswold LLP, 4). Additionally, the Ohio Employment Law provides that the employer should maintain all the employee documents and information that provides any limitations that are covered under Title VII of the Civil Rights Act of 1964, which covers the limitations and provisions for non-discrimination of workers based on individual rights that are protected by the law (Calfee and Griswold LLP, 4). This requires that the employee record should carry with it a specification of whether an employee was hired to ensure the gender, racial or other balances provided under that article of the constitution. The Ohio Employment Law further requires that an employer should maintain employee records and documents related to the employee’s payroll for at least 4 years (Calfee and Griswold LLP, 5). Under the payroll record, the employer should include the date each pay period is made, the job title of the occupation of the employee, the employees address, name and gender. The employer should also maintain the employee benefit record for at least a period of 6 years, which covers the social security and pension benefits for the employees. In addition, the medical information of the employee should be provided as part of the employee record that should be maintained by the employer, as required under the provisions of the Family and Medical Leave Act of 1993 (Calfee and Griswold LLP, 5). Under this record, the reasons for the provision of the medical or family-based leave, including the frequency and any other relevant information to that effect should be maintained for a period of at least 6 years. The employee record should also comprise of any special conditions of the employee at the time of hiring as provided under the Americans with Disabilities Act (1990), on the event that the employee has any disability conditions (Calfee and Griswold LLP, 5). Finally, the employer is required to maintain as part of the human resource records any information related to the injury or otherwise any form of toxic exposure and consequent health impact that the employee might have sustained, as well as all the records of the treatment given to the employee for a period of at least 5 years since the sustenance of the injury or toxic/hazard exposure, or since the completion of the treatment period based on whichever is longer, as provided under Occupational Safety and Health Act (1970) (Calfee and Griswold LLP, 5). It is through maintaining all of the above information where it is applicable, that the employer has maintained a full human resource record for the employees. Circumstances under which employee’s human resource records should be released and to whom The human resource records are treated as confidential and sensitive documents which require to be safeguarded against unauthorized access. Thus, it is required that an employer should only collect information related to the business or regulatory compliance with the state and the federal laws, as well as compliance with legal needs of the organization or the employee (Hornak, n.p.). Thus, the attempt by an employer to collect any information that is outside these requirements from an employee amounts to an illegality. Despite the fact that the human resource records are confidential, there are circumstances under which such documents should be disclosed. According to the Privacy Act of (1974), the federal agencies should not disclose any private information regarding an individual to the public or any other entity, without the written consent of the individual (Hornak, n.p.). Additionally, this constitutional provision requires that the federal agencies should allow an individual to inspect and correct where necessary, the information such agencies are holding regarding an individual (Hornak, n.p.). Further, the disclosure of personal information is guided by the Freedom of Information Act (1966), which provides for the conditions under which information should be released and the person to whom such information should be allowed access (Hornak, n.p.). Thus, according to this act, the circumstances under which an employee information can be disclosed include disclosure of employee information for routine use, for example to the human resource department or the board of directors of the organization, for the purposes of review for promotion, transfer, retirement or any other human resource routine control mechanisms (Hornak, n.p.). Secondly, an employee’s confidential information can be released to the employee themselves upon their request, for the purpose of regular updating, reviews and correction in line with the policy provisions of the organization (Hornak, n.p.). Thirdly, the confidential information related to an employee can be disclosed under circumstances where the law enforcement agencies have presented a written request to access the confidential information of an employee, for the purposes of civil or criminal law enforcement (Hornak, n.p.). The disclosure under this circumstance may happen without the written consent of the employee, considering that it is only the written request of the law enforcement agency that is necessary. Fourthly, the confidential information of an employee can be disclosed upon receiving a court order to the effect that the human resource records of the employee should be released to the court or the relevant judicial authority for appropriate judicial application (Hornak, n.p.). The other circumstances under which the confidential information of an employee should be disclosed is under circumstances which are compelling and sensitive, such as those relate to an individual’s health and safety information that might be held by the employer (Hornak, n.p.). Additionally, under circumstances where an individual is terminally ill, a request for disclosure of confidential information by the immediate family or the next of kin of the employee can be considered for possible disclosure. In this respect, it therefore follows that the confidential information of an employee can only be disclosed to limited parties of interest. These parties may include the individual employees themselves, the relevant organizational department authority for routine human resource information evaluation and action, the law enforcement agencies, the courts pursuant to a relevant order requesting for such information, and the next of kin or the immediate family under circumstances of permanent disability or terminal illness (Hornak, n.p.). If an employee is fired what comments if any can be made to potential future employer? The comments that a previous employer should give to a potential employer of a fired employee must be scrutinized and carefully evaluated, to ensure that they do not go beyond the limit of confidentiality or give improper information (Hornak, n.p.). In this respect, the comments to give to a potential employer should observe several rules: Brief: The comments given to a potential employer should be very brief, giving information that is only job related (Hornak, n.p.). For example, the comment can give the job reference number of the fired employee, their previous occupation designation, the salary scale of the occupation and the dates that the employees left the organization. Factual: The information given to a potential employer should be factual, avoiding any element of exaggeration or misrepresentation of information (Hornak, n.p.). The reasoning behind this rule is that the exaggerated or misrepresented information may land a previous employer into court, after being sued for defamation (Hornak, n.p.). Obtain release consent: Before a previous employer can disclose or give any reference information related to a fired employee, the previous employer should seek the written release consent from the employee, which states the specific information that the employer can release to a potential employer (Hornak, n.p.). The reasoning behind this rule is that; the previous employer will commit the fired employee to consent the information release, and thus get relieved off the burden and responsibility of information disclosure. Drug testing What will be your drug testing processes in a perspective new employee? In the perspective new employees, the drug testing process will entail committing the final candidates who have passed all the other recruitment and hiring stages to the test, and are therefore considered to be potential new employees of the organization. In this respect, drug testing for new employees should be the last step of the hiring process. There are two major reasoning behind this process; the application of drug testing as the final stage of the new employee recruitment process ensures that the company does not waste valuable resources in medical procedures that might not benefit the organization (TWC, n.p.). Secondly, the application of drug testing as the final stage of the new employee recruitment process limits the liability of the organization associated with the legal suits that may arise out of complaints from the drug testing procedures, by ensuring that only few candidates who are potential employees of the organization undergoes the procedure (TWC, n.p.). What will your random drug testing program be? Why? The random drug testing program will be sending the employees to a drug testing lab on a random basis, as and when the organization deems it necessary. The reasoning behind this program is that the organization will not be limited by a rigid schedule of assessing the employees for drugs use, which might be an ineffective way of obtaining quick results regarding any individual employee if there is a suspicion of drug use. Write a Drug Testing Policy based on those recommendations The company prohibits the possession or use of drugs by the employees either within or without the premises of the organization. In this respect, the organization will undertake random drug tests amongst the employees who are selected on random basis. The results of the drugs test will be kept absolutely confidential and will only be known to the employee tested and the relevant organization authority. The breach of the organizational drug policy prohibiting the possession or use of drugs will lead to relevant disciplinary action. Works Cited Calfee, Halter and Griswold LLP. Ohio Employment Law. Ohio: Law for Change (LFC), July 2013. 1-27. Print. Hornak, Mark R. “Avoiding Defamation in the Workplace, Giving References and Disciplining Employees While Avoiding Liability.” Find Law, March 26, 2008. Available at: http://corporate.findlaw.com/litigation-disputes/avoiding-defamation-in-the-workplace-giving-references-and.html Texas Workforce Commission (TWC). “Drug Testing in the Workplace.” Available at: http://www.twc.state.tx.us/news/efte/drug_testing_in_the_workplace.html United States Department of Labor (USDOL). Fact Sheet 21: Recordkeeping Requirements under the Fair Labor Standards Act (FLSA), 2008. Available at: http://www.dol.gov/whd/regs/compliance/whdfs21.htm Read More