Somebody told me a month ago that “employment and privacy” is not a subject that most people on St. Maarten are interested in. But when the coordinator of the Weekender gave me some employment law topics that could be of interest to readers, I realised that all these topics are related to employee privacy, or the private life of employees. We also regularly receive requests from employers to advise on these subjects.
It is a fact that everybody has a private life, besides employment. And sometimes these two worlds intertwine or collide. This is an extensive subject, and thus impossible to discuss the whole of it in this column. This article is a general article to give readers, employers, and employees an idea of what issues can be related to privacy or the private life of the employee. I am sure I will address some of these subjects in detail in the future.
Let me start with the pre-contractual phase of employment. Some questions may be asked about the potential employee’s private life, simple examples are questions regarding religion or current pregnancy, that can lead to a prohibited distinction between potential employees, in other words, discrimination. This is an example of how privacy is also intertwined with other fundamental rights.
Employees have an expectation of privacy when at their workplace. This may raise legal questions about video surveillance and monitoring the use of email- and internet of employees. Searching in an employee’s work e-mail can be unlawful. But in certain cases, searching the e-mail of an employee is necessary for the employer. The same is applicable to the use of video surveillance and the monitoring of internet use. It is advisable to have a policy in place and to inform employees in advance regarding these policies, to prevent complications later on for the employer.
The use of private social media can also lead to employment conflicts. Often print-outs of social media are used in court cases. A simple example is an employee of which a video is posted while he is dancing the night away while calling sick due to a sprained ankle. Expressions of employees on private social media can also lead to a disrupted employment relationship, or can be unlawful to the employer. This means that there are some limits to the right of freedom of speech on one’s social media. In general, I would advise everyone, not only employees, to be mindful of what they post on social media because in the future, they can be affected by a thoughtless moment.
The Ordinance on Protection of Personal Data also limits the processing of personal data, for example, medical information. This ordinance is also applicable to employers. Unfortunately, this ordinance is not enforced because the commission that should oversee the enforcement of the ordinance was never installed, and the existence of the ordinance was never promoted. I say unfortunately because as an attorney and in my personal life, I often encounter breaches with regard to personal information by companies and institutions that should know better, and this amazes and worries me.
Our firm is also requested to advise employers in cases regarding employees that have been detained by justice, because they are suspects of criminal offenses that happened in their private life. The question in this case is: How will this situation affect the employment? For example, the case of an employee that works with cash at a bank and is accused of assaulting his life partner would have different consequences if the same employee were accused of embezzlement at his church.
Finally, there is ample case law regarding when and under which conditions drug and alcohol testing of employees is allowed. But a subject that is more in tune with our current times is COVID-19 testing by the employer: Is it allowed or not, and under which circumstances is it allowed? These questions are related to physical integrity and privacy.
Among other things due to the digitisation of or society, private lives and employment have become more intertwined. On some occasions, the legislator has come up with legislation, for example, the Ordinance on Protection of Personal Data. In most cases, we depend on the case law to guide us. The fact that in above there is no one-size-fits-all rules, makes it more difficult to know how to act, for employee or employer, when situations present themselves. In some circumstances, company policies can be a good start, if these policies are in line with the law and case law.