Comparing the U.S. and EU Approach to Employee Privacy

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The U.S. approach to employee privacy stands in sharp contrast to that of the European Union The EU Member States adopted an omnibus data protection directive (the 'Directive') regulating the collection and use of personal data across all sectors of the economy. The U.S. federal and state privacy laws, on the other hand, address specific instances of abuse or perceived market failures, or

protect particularly sensitive information, such as health or financial information, and groups in need of special protection, such as children.

This fundamental difference in approach to privacy between the U.S. and the EU is reflected in the contrasting levels of regulation of two basic aspects of the employment relationship: the conducting of background checks prior to employment and the monitoring of employees in the workplace.

Whereas employers conducting background checks in the U.S. are subject to some regulation, employers in the EU are more restricted, both in terms of what can and cannot be covered and also how the information obtained can be used. Similarly, employees in the U.S. have a diminished

expectation of privacy at the workplace and lawful monitoring of employees’ electronic communications over employer-provided facilities is seen as a legitimate function of responsible management. Failure to investigate these activities may even, in some cases, expose the employer to liability to injured third parties. In contrast, in the EU, employees’ expectation of privacy at the workplace is generally high, and employees are viewed as being in need of protection from their employer’s interference with their privacy.

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Morrison & Foerster LLP on:

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