Workplace privacy

The field of workplace privacy involves a vast number of disparate topics and is governed by a wide range of different laws, from the United States Constitution to state and local laws in a number of jurisdictions. Accordingly, the law of workplace privacy varies from state to state and jurisdiction to jurisdiction. What issues of workplace privacy have in common is a focus on the regulation or limitation of the activities of employers that threaten to violate the interests of employees in keeping personal information and personal activities private from their employers and in safeguarding their individual dignity and autonomy.
The United States Constitution restricts the actions that public-sector employers can take with respect to the privacy interests of their employees. The two primary protections for the workplace privacy interests of public-sector employers are found in the Fourth Amendment’s protection against unreasonable searches and seizures and the Ninth Amendment’s more general right to privacy. The Fourth Amendment generally restricts physical intrusions upon employees’ privacy interests, such as the right to be free from the searches caused by employer drug testing, medical and genetic testing, employer searches of the person and property of employees, and employer surveillance and monitoring of employee activities and communications. In addition, the constitutional right to privacy restricts employer intrusions of a less tangible or physical nature, such as employer interference with employees’ interests in making certain personal decisions and in avoiding the disclosure of personally identifiable information.
The Fourth Amendment protects against unreasonable searches and seizures. An action constitutes a search or seizure if it intrudes upon an individual’s subjective expectations of privacy that society is prepared to accept as objectively reasonable. That is, a public-sector employer’s action will implicate the Fourth Amendment if it invades an employee’s reasonable expectation of privacy; if the employee’s expectation of freedom from intrusion is not deemed to be reasonable, no constitutionally regulated search or seizure has occurred. Although traditional Fourth Amendment analysis would find a search or seizure to be unreasonable if not conducted pursuant to a warrant issued upon probable cause, an exception to these requirements has been recognized in the case of intrusions upon privacy that occur in the context of the workplace. In the workplace context, courts have allowed searches and seizures to be justified based on “special governmental needs” not tied to law enforcement. When that special needs test is met, the courts have allowed a workplace search or seizure to be justified based on a balance between the interests of the governmental employer in conducting the search and the degree of intrusion upon the privacy interests of the affected employee.
Accordingly, the courts, including the United States Supreme Court, have upheld public-sector employer drug testing programs against Fourth Amendment challenge when those drug testing programs have been deemed necessary to safeguard public or employee safety. On the other hand, when the employer has been found to have adopted a drug testing program based on less compelling circumstances, such as a general interest in employee productivity or efficiency or a symbolic desire to demonstrate the integrity of employees by showing that they are drug free, the courts have generally refused to uphold such programs. In addition, in applying the balancing test to employer use of drug testing, courts have considered whether the method of drug testing is particularly invasive, such as whether it involves direct observation of the act of urination in providing a test sample or whether the drug test measures largely off-duty, as opposed to on-duty, activities.
While Fourth Amendment challenges in the employment setting may occur most commonly in the context of drug testing, similar challenges have been made to other forms of employer activities, such as employer use of video, computer, and electronic surveillance. Because the intrusions deemed to be caused by such employer actions are generally considered less invasive than that occasioned by drug testing, employers have generally been required to provide less justification for those types of actions. In addition, the existence of an employer policy informing employees of the potential or certainty of such monitoring has been deemed to decrease the reasonable expectations of employees that they will not be subject to such monitoring.
Ninth Amendment right-to-privacy challenges have been brought when public-sector employers have sought disclosure of, or made employment decisions on the basis of, sensitive personal information about employees. For example, these types of challenges have been brought when current or prospective employees have been questioned—in polygraph examinations, honesty or psychological examinations, or just employment interviews—about intensely private information, such as information about sexual practices, religious beliefs, or stigmatized medical conditions. As in the Fourth Amendment area, these challenges have been resolved by balancing the employer’s interest in and need for the requested information with the privacy interests of the employee or job applicant. The more private the information, the stronger the employer’s interest in the information needs to be.
There are also a number of federal statutes that have implications for employer actions that threaten the privacy interests of employees. For example, the federal Employee Polygraph Protection Act of 1988 limits the ability of private-sector employers, but not public-sector employers, to conduct polygraph examinations and other lie detection tests of employees and job applicants. In general, pre-employment polygraph testing is allowed of job applicants in very limited circumstances, specifically when employers are involved in providing security services or in manufacturing or distributing controlled substances. With respect to current employees, private-sector employers can conduct polygraph examinations only in connection with an ongoing investigation of economic loss or injury to the employer and then only of employees with access to the property at issue and for whom there is reasonable suspicion of involvement in the loss or injury.
Another federal statute that places some restrictions on the actions of employers that may implicate employee privacy rights is the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communication Privacy Act of 1986. This act, known generally as the federal Wiretap Act, places restrictions on the ability of employers to intentionally intercept or attempt to intercept oral, wire, or electronic communications of employees. Accordingly, recording oral communications and conversations of employees can violate the act if the employees have a reasonable expectation that their conversations will not be overheard. Similarly, the federal Wiretap Act can be violated when employers listen in on or record the telephone conversations—a wire communication—of employees, unless the employer can justify that monitoring by either implied or express consent of the employee or can show a business-related justification for the monitoring. In general, while employers are allowed to monitor the business telephone calls of employees, they are not authorized to monitor personal telephone calls, at least no longer than is necessary to determine if the call is in fact business or personal. The federal Wiretap Act, however, has been interpreted to provide little protection to electronic communications, such as voice mail and electronic mail. In general, employers have not been found liable for intercepting those types of employee communications unless the communication was intercepted at the moment of transmission; accessing those communications while they are in storage has generally been held to fall within an exception to the act’s prohibitions.
Other federal restrictions on employer actions that threaten employee privacy rights arise not directly from an effort to protect privacy interests but indirectly from an effort to prohibit employer discrimination against members of protected groups. Accordingly, while the Americans with Disabilities Act of 1990 may restrict the ability of employers to seek private medical information from their employees and job applicants, the purpose of that statute is to prohibit discrimination on the basis of disability. Similarly, when some courts have sought to protect employees from discrimination and harassment on the basis of sexual orientation or status as a transsexual, the focus of those courts has been on whether the employer’s action constitutes discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964, not whether the employer’s action violates a private right to not have to disclose information or to not have employment decisions made on the basis of personal information.
A number of states have enacted state legislation to protect the privacy rights of employees, filling gaps left in federal protection for privacy. Indeed, these state statutes may be the only protection that most employees and job applicants have with respect to their privacy interests. These state statutes seek to regulate a number of different types of employer actions that may implicate employee privacy rights. For example, a large number of states have enacted drug testing statutes. While some of these statutes seem motivated by a desire to clear the way to allow employers to conduct such drug testing of employees and job applicants, a number of provisions of these statutes—restricting the manner in which the tests are conducted and the circumstances under which they can be conducted—appear to be drafted with employee privacy interests in mind.
Similarly, many states have adopted statutes regulating employer use of polygraph tests, and many of these statutes are more restrictive than the federal act. Among the provisions of such statutes are requirements that certain types of questions not be asked of employees, apparently out of concern for employee privacy interests. Other statutes restrict the ability of employers to conduct psychological testing of employees; their intent is to ensure that employers do not use these tests without a proper justification and that the use of such tests is not more intrusive than is needed to serve the employer’s legitimate interests. States have also enacted legislation to protect the privacy interests of employees in the areas of sexual orientation, genetic testing, and employer efforts to regulate the off-duty activities of employees.
Employer actions that threaten employee privacy can also be challenged as a violation of the common law right of privacy, which is recognized as a claim in the employment setting in a number of states. Although there are several types of “invasion of privacy” claims that have been recognized, the common law privacy claim that is most likely to be applicable in the employment setting is the claim that an employer’s action is an “unreasonable intrusion upon the seclusion of another.” In general, the ability to make out a claim under this theory requires that the employee establish that the employee has suffered an intrusion that is offensive to a reasonable person and that the reason for the intrusion does not justify that intrusion. Employees have relied on the common law right of privacy, with some success, to challenge drug tests, polygraph examinations and psychological tests, physical searches of the persons and property of employees, electronic and video monitoring of employees, and attempts by employers to regulate the off-duty conduct of their employees. As with the similar challenges that are brought under the constitutional right to privacy, the success that employees have had in asserting common law right of privacy claims depends both on the degree to which the employer’s actions intrude upon privacy interests that the courts are willing to accept as reasonable and the legitimacy and gravity of the employer’s interest in and need for the requested information.
This brief summary of the various laws that touch on issues of privacy in the workplace illustrates the lack of comprehensive regulation of employee privacy. The patchwork of federal and state constitutional, statutory, and common law indicates that the protection of one’s privacy interests depends on the particular type of employer activity that threatens those interests and the particular jurisdiction in which one is employed. This state of affairs has led some commentators to argue for comprehensive federal legislation that would protect the privacy rights of employees. While some would oppose such comprehensive legislation on the ground that such issues are better left to the states, those arguments have not been sufficient to prevent the enactment of other comprehensive federal legislation dealing with workplace issues. These same kinds of arguments were made, and rejected, when the various federal anti-discrimination laws—Title VII of the Civil Rights Act of 1964, the Age Discrimination Act of 1967, and the Americans With Disabilities Act of 1990—were enacted. Nor have these arguments been sufficient to defeat other federal legislation relating to the workplace, such as the Employee Polygraph Protection Act of 1988.
The law of employee privacy would, in the opinion of this commentator, best be regulated by comprehensive federal legislation that imposed uniform minimum standards for the protection of the privacy rights of employees. All individuals would then be entitled to have some basic protection from employer intrusion into their off-duty activities and personal characteristics that are unrelated to their ability to perform the duties of their jobs. As in other areas of the law, such as the antidiscrimination field, states could continue to be given the authority to provide more protection than the federal minimum, but they would not be allowed to enforce state standards that were not as protective as the federal minimum. Although this approach would likely further restrict employers’ actions that threaten privacy rights, employers would also gain some certainty about the validity of any actions taken in compliance with the proposed federal standard.
Although congressional legislation dealing with specific types of employer actions might be beneficial, it might also pose difficulties, particularly if Congress cannot keep up with new technologies that might threaten employee privacy interests. Although not without its problems, more legislation would likely be needed to address the full range of possible employer activities. Prohibiting regulation of off-duty conduct that does not adversely affect an employee’s job performance would be a critical aspect of any proposed federal legislation, as would prohibiting inquiries about private off-duty conduct and other private information irrelevant to job performance. Finally, any proposed federal legislation should also regulate the manner in which employers seek private information that is sufficiently job-related so as not to be prohibited; such inquiries should be made in the least intrusive manner, and employers should be required to safeguard the confidentiality of any private information obtained. More specific rules on limiting or regulating employer activities would presumably be left to the courts or to an administrative agency charged with enforcement of the statute.
While there would presumably be employer opposition to more regulation of their activities relating to privacy, the existence of scattered federal and state legislation relating to privacy demonstrates that legislatures continue to be concerned about these issues. Comprehensive federal legislation is necessary if significant protection is to be given to employee privacy rights.

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