Privacy in the Workplace: Overview

Employers are always concerned about how much latitude they have when it comes to employee privacy at work.  It is important to remember that employees have only a reasonable expectation of privacy. Employers can determine what is considered reasonable by developing a clear policy addressing workplace privacy issues and communicating the policy to their employees. Furthermore, there are a number of areas in which an employer’s practice may violate an employee’s privacy rights.

Below are common issues of employees’ privacy rights in the workplace-

1. Physical Searches– An employer’s search of an employee’s person or private belongings is perhaps the most intrusive form of employer inquiry. However, a physical search may be warranted and lawful under certain circumstances such as theft

2. Video Surveillance– An employer may have a legitimate business interest in videotaping its employees.  Employers should only videotape in open or public areas in which there is no expectation of privacy (e.g., shop floor), and the employer should give its employees notice that they are being videotaped.

3. Background and Credit Checks- The federal Fair Credit Reporting Act (FCRA) requires employers to obtain applicants’ consent when a third party conducts a background investigation. Some states also have their own background check laws.

4. Internet and E-Mail- The Electronic Communications Privacy Act of 1986 (ECPA) prohibits the unlawful and intentional interception of any wire, oral, or electronic communication.  Title II of ECPA, the Stored Communications Act (SCA), also prohibits access to such information while in electronic storage. The exceptions are the provider exception, the business-use exception, and the prior-consent exception.

5. Genetic Information– The Genetic Information Nondiscrimination Act (GINA) prohibits employers from discriminating against employees or applicants on the basis of genetic information. The law applies to all public employers, private employers with 15 or more employees, employment agencies, and labor organizations.

6. Medical Information- The Health Insurance Portability and Accountability Act of 1996 (HIPAA) created national standards to protect individuals’ medical records and other personal health information and to give patients more control over their health information.

7. Social Networking Sites– Employees have increasingly been utilizing social networking sites for a variety of uses, both personal and professional. Although these sites can be beneficial, their use can also have risks, such as the following:

*Discrimination- By viewing candidate profiles, employers may learn more information (e.g., race, disability, age, religion, family/marital status, sexual orientation) than the employer could legally ask about directly.

*Background check laws- It is unclear whether federal FCRA and some state laws would require consent from an applicant before an employer or third party conducted an Internet search as part of a background check. However, even if not legally required to do so, employers should consider getting consent so that applicants are on notice that the information they post on social networking sites may be reviewed by the employer.

*Monitoring employee use of social networking sites- There is little case law addressing employers monitoring employees’ social networking posts. However, the few cases in this area suggest that courts will be reluctant to uphold an invasion of privacy claim—whether based on the U.S. Constitution or state common law—when an employee voluntarily posts information on a public site.

*Right to organize- Another possible concern for employers that monitor employee use of social networking sites is the National Labor Relations Act (NLRA), which protects employees’ right to engage in a concerted activity regarding terms and conditions of employment.

*Personal Internet Account Privacy-News media reports that some employers were requiring job applicants and existing employees to provide access to their social media accounts, many state and federal lawmakers have proposed (and several states have passed) legislation to ban this practice.