The Employee's Right To Privacy and Management of Personal Information

EMPLOYEE PRIVACY

The issue of employee privacy can arise in several situations. For example, employers may want to monitor telephone conversations between employees and customers in order to evaluate employee performance and customer service. Employers may want to monitor e-mail for what the employer considers as valid business reasons. Employers may want to do drug tests on their employees or search their lockers for illegal drugs.

SOURCE OF PRIVACY RIGHTS

The 4th and 14th amendment provides the constitutional basis for the right of privacy for public employees (e.g., federal, state, county and municipal). However, these amendments do not apply to employees in the private sector. Employee rights in the private sector are covered by states statutes, case law and collective bargaining agreements.

MONITORING EMPLOYEE TELEPHONE CONVERSATIONS

The Federal Wiretapping Act provides that it is unlawful to intercept oral or electronic communications. Both criminal and civil penalties are provided for by this Act. There are two exceptions:

An employer can monitor his/her/its telephones in the ordinary course of business through the use of extension telephone; and
An employer can monitor employee communications with the employee's consent. Consent may be established by prior written notice to employees of the employer's monitoring policy. Consent signed by the employee is preferable.

Interception of a business call is within the ordinary course of business exception. Personal calls can be monitored only to the extent necessary to determine whether the call is a personal or business call. As soon as it is determined that the call is a personal call, the employer must quit listening.

E-MAIL MONITORING

Employers may want to monitor e-mail messages of employees for such reasons as evaluating the efficiency and effectiveness of the employees or for corporate security purposes such as the protection of trade secrets. The Electronic Communications Privacy Act (ECPA) amended the federal wiretap statute to make it apply to e-mail communications. However, the same two exceptions exist (i.e., ordinary course of business and consent).

PROPERTY SEARCHES

In the case of public employees, the employer, generally, can search the office, desk, or file cabinets because the employer's interests in supervision, efficiency and control of the workplace have been held to outweigh an employee's privacy interests.

In the private sector, the question turns on whether or not the employer has created a reasonable expectation of privacy. For example, giving an employee a locker with the employee to furnish his own lock would cause the employee to believe that the locker would not be searched. However, if the employer provides the locks and the employee knows that the employer has a combination to all the locks no expectation of privacy would be created and the locker could be subject to search by the employer for legitimate reasons and the employee would have no grounds for an invasion of privacy suit. The safest thing for an employee to do is make it clear, by a written policy, what is subject to searches by the employer.

DRUG AND ALCOHOL TESTING

Drug testing of public employees carry both 4th (no unreasonable searches) and 5th (no self incrimination) amendment issues. The Federal Omnibus Transportation Employee Testing Act covers certain classes of employees in the airline, railroad and trucking industries. These employees are subject to random drug and alcohol testing.

Random testing of employees working in safety-sensitive positions in the private sector is permissible, as is the testing of private-sector employees on the basis of reasonable suspicion. This policy should be made clear to the employees at the time they are hired and written consent obtained when possible (or at least written acknowledgment that they receive notice of such a policy).

Foundations of Privacy Rights

The U.S. Constitution does not actually speak of privacy, but it has been read into the Constitution as a necessary adjunct of other constitutional rights we hold. The right to privacy was first recognized by the Supreme Court in Griswold v. Connecticut, 381 U.S. 479 (1965) when the court held that a Connecticut statute restricting a married couple's use of birth control devices unconstitutionally infringed upon the right to marital privacy. The Court held a constitutional guarantee of various zones of privacy as a part of fundamental rights guaranteed by the Constitution, such as the right to free speech and the right to be free from unreasonable searches and seizures. The latter right is that on which many claims for privacy rights are based.

by: USLegal,Inc.

The Employee's Right To Privacy and Management of Personal Information