DUFF LAW FIRM, P.L.C.
THOMAS J. DUFF

Duff Law Firm, P.L.C.
The Griffin Building
319 Seventh Street, Suite 600
Des Moines, Iowa 50309-3826
Telephone: (888) 251-2722
Fax: (515) 282-0477

Employment Law
Employment Law Frequently Asked Questions

IV. Privacy Issues

The introduction of new technologies has complicated the state of workplace privacy law. Technology is vital to modern business, and it makes it easier than ever for employers to monitor workplace communications and behavior. A number of employers utilize technology to monitor the use of e-mail and the Internet by their employees. The Supreme Court has decided that this monitoring is legal, despite established law that protects other forms of communication like private conversation and mail. Certain physical spaces, such as locked desk drawers or storage lockers, are also protected. Activities such as drug use allow the employer to legally test their employees. If you are uncertain if your privacy has been violated, or whether a procedure is legal, you should contact an attorney with experience in employment law. Your lawyer can determine the validity of your employer’s privacy policies.

There are several aspects of employee privacy that should be explored in more detail.

• Monitoring of computer usage. Employees have little privacy protection when using an employer’s computer or network. Any e-mails sent or received using an employer’s network are considered the property of the employer. Employers have the right to view and monitor employee e-mail usage, and many employers archive all e-mails for review. These archived e-mails are often introduced as evidence of employee misconduct during legal proceedings. Employers are also allowed to track their employees’ use of the Web, to place time limits on Web usage, and to block websites.
  
  
• Monitoring of phone calls and voicemails. Employers are allowed to monitor business-related calls, but they are not allowed to monitor personal telephone conversations. The Electronics Communications Privacy Act (ECPA) only allows the monitoring of personal calls if the employee is informed and consents. Employers are also barred by the ECPA from deleting or reviewing voicemail messages.
  
  
• Drug testing. Employers are allowed to require employee drug testing under some circumstances; state law varies widely on the issue. Generally, employers are allowed to test workers if:
  
  
• The employee’s job is dangerous or can present danger to others.
• The employee is or has previously enrolled in drug rehabilitation.
• The has been involved in an accident and drug use was suspected.
• Management has reason to believe the employee is using drugs, based on behavior or physical evidence.

These employee rights must be weighed against the employer’s right to monitor and conduct their business. If you have a concern about workplace privacy, either as an employee or employer, you should contact an attorney with experience in employment law.

Independent Contractors

Independent contractors are not employees. Instead, they negotiate an oral or written agreement with a business. The contract establishes the rate of pay, expectations, and specific standards or requirements. Businesses do not withhold taxes for independent contractors, and they are not covered by unemployment or workers’ compensation regulations. Independent contractors, while they have significantly more freedom than at-will employees, therefore do not receive many of the legal protections extended to employees. If you are considering becoming or hiring an independent contractor, you should contact an attorney with experience in employment law in order to learn and protect your legal rights.

Independent contractors have a large degree of control over how and when their project should be completed. The businesses they work for are their clients, not their employers. While the clients are able to specify the desired work outcome, the independent contractor is generally given free rein to determine how best to meet that outcome, as long as they meet the terms of the contract and complete their work on time. Independent contractors must also submit their own tax payments.

Federal law defines independent contractual relationships as measured by the independent contractor’s independence. There is no single legal test which determines whether a person is an independent contractor or an employee. The Supreme Court has measured several factors in past decisions, including:

• The relationship’s permanency.
• The importance of the services performed to the business.
• The worker’s opportunity for profit.
• The degree of independence, in organization and performance of duties.
• The ability of the worker to succeed in a free labor market.
• Whether the worker has invested in materials or equipment.
• The amount of control each party has over the relationship.

Other factors, such as payment, licensing, or even the presence of a formal contract, have been held less important.

Therefore, a number of factors must be weighed before determining whether an individual is an employee or independent contractor. These factors make it vital that an individual or an employer with a question about independent contractor status consult with an attorney who has experience in employment law.

DISCLAIMER: The information you obtain at our firm web site is not, nor is it intended to be, legal advice. It is recommended that you should consult an attorney for individual advice regarding your own situation.

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If you would like to schedule a free initial consultation contact an Iowa employment law attorney, representing clients in Ames, Iowa  at the Duff Law Firm. Give us a call at (888) 251-0477.

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