The Lowdown on Workplace Privacy

Under the Fourth Amendment of the US Constitution, people have the right to privacy. This law prohibits unreasonable searches and seizures in a citizen's home. The prohibition applies to government, but does not cover every place where a citizen may spend his time, and that includes the workplace.

Even though employees or applicants are protected from being asked about issues related to their sex, age, race, disability, religion, or national origin by the employer due to prohibitions under the Civil Rights Act, and that their personnel records may not be arbitrarily published, they have very limited employee privacy rights unless granted by the employer.

Employee’s privacy rights are absent in the private-sector because most of the private-sector employers conduct electronic surveillance on their employees; some even without the consent of their employees. Their internet, web, and e-mail usage, locations, movement, activities, dialed numbers, phone conversations, instant messages, files, and even computer keystrokes may all be monitored through sophisticated technology.

Surveillance is generally done for security purposes; subsequently, safety and security legally trumps employee privacy rights. Aside from security, this is also a way for the employer to thwart harmful employee behavior and ensure productivity. The downside to this is that employers can virtually abuse their power to monitor and snoop into everything because there is no federal law that protects workplace privacy rights from unreasonable employee surveillance.

There are state-mandated workplace privacy laws in California, Connecticut, Delaware, Michigan, and Rhode Island. However, these laws do not necessarily prohibit monitoring and instead legalize electronic surveillance. They require employers to give prior notice of electronic surveillance to the employees.

Employees therefore must be aware of the surveillance around the workplace. They need to learn the employer’s policy regarding workplace privacy rights, or their lack thereof, especially since employees are allowed to terminate employees who have been found violating it. For example, an employee who spends all day chatting with a friend outside of the workplace and ends up performing poorly at work can be fired.

However, employees may still challenge such firings in court. There may not be a clear policy regarding workplace privacy therefore making the employees unaware of the surveillance, or the employer may not have a good cause to fire an employee.

Also, when enforcing monitoring and surveillance policies, employers don't have the right to violate the attorney-client privilege under public policy, the relevant provisions of the Stored Communications Act, or a person’s right to privacy under the Fourth Amendment.