Big Brother at Work: Ins and Outs of Workplace Privacy

In this session at PRIMA 2024, Jessica Osborne and Liani Reeves, attorneys at Miller Nash LLP, identify and discuss employer obligations and limitations relating to privacy and confidentiality. They also evaluate specific examples of how privacy and confidentiality rights are applied in the workplace, developing an understanding of federal laws and cases and how to incorporate the law into everyday workplace practices.

Employee Privacy Rights

Privacy includes freedom from unauthorized intrusion. Employees come to work with an expectation of privacy even if it is work-related. At times, those expectations are even reasonable, but what is authorized in the workplace? Rules limit how extensively an employer can do the following:

1. Search an employee’s possessions or person
2. Monitor their actions, speech, or correspondence
3. Know about their personal lives, especially but not exclusively in the workplace

Legal Framework

In an employee’s right to privacy, public employees retain some privacy rights. There are limitations though in policies and procedures that can limit those privacy rights and expectations. Employees may still be entitled to confidentiality even if privacy rights are not implicated. There needs to be clear and concise policies to reduce employee expectations on right to privacy.

Sources of Privacy Rights

Items that create the expectation of privacy, include:

• Constitutional rights (4th Amendment)
• Various federal and state privacy laws
• Public records laws
• Employment laws
• Employee handbooks and employer policies
• Collective bargaining agreements
• Common law tort, invasion of privacy principles

Constitutional Rights

The First, Third, Fourth, Fifth, Ninth, and 14th Amendments all include protections for individuals that may imply a type of privacy. Not one of these provisions notes anything about privacy, but the Supreme Court has developed a concept of privacy. What defines these concepts of privacy may change over time based on how the court interprets these amendments.

Privacy Protections Under Federal Law

There are several federally-mandated privacy laws that may create limitations for employers, including, the Electronics Communications Privacy Act, Stored Communications Act, Genetic Information Nondiscrimination Act, ADA, HIPAA, and the Fair Credit Reporting Act.

Common Law Privacy Rights

Generally, there are four categories of invasion of privacy torts, including:

1. Intrusion upon seclusion
2. Public Disclosure of Private Facts
3. Placing an Individual in a False Light
4. Right of Publicity

Consent/No Reasonable Expectation of Privacy

Many, but not all, common law privacy rights claims can be managed if employees and/or citizens give either express or implied consent to “invasions of privacy.” Additionally, if employees and/or citizens have no “reasonable expectation of privacy” in the workplace or in the information maintained by the government agency. Tips for reducing liability:

• Enact and provide notice of policies and procedures limiting expectation of privacy
• Implied consent

Searches of Workspaces

The employer’s ability to search an employee’s workspace, locker, and desk depends upon:

1. The particular circumstances involved and the reason for the search
2. Whether the employee has an expectation of privacy of the item being searched

Employers will benefit from having clear policies wherever they can, so employees have a lessened expectation of privacy from the start of employment. These procedures should be regularly explained, so they understand the risks, including that you have the right to search and will search when necessary.

Personal Searches

Some circumstances will permit some amount of personal item searches, but it requires particular sensitivity. The more invasive the search, the greater the privacy expectation. Never conduct a body search without consent. Inform the employee in advance of the extent of the search, that the employee is free to leave,  and not required to participate. The employee should never feel like they had no other choice.

Employee U.S. Mail

Generally, mail addressed to employees at their workplace can be opened by the employer. Federal law bars mail obstruction, but once the mail arrive at the workplace, it can be searched by an employer.

Work Email, Internet, Computers, and Phones

Employers are generally allowed to monitor activity that occurs, but there the expectation of no privacy should be set from the point of hiring via policies and procedures. This applies to emails, internet use, employer work phones, employer-provided cell phones, messaging platforms and apps used by the employer.

Video Surveillance and GPS Tracking

This includes video cameras with/without audio recording. Post notices and signs warning employees and the public that the premises are being monitored. Don’t exceed a reasonable scope, and have a clear written policy based on appropriate use and a harassment-free workplace.