Employee Privacy Rights: An Introduction

Protecting employee privacy rights is a hot topic and it is a balancing act between two business-and-personal-related issues:

1. In the course of employment, companies need access to some personal information of employees.
2. Various federal and state laws govern how employee personal information can be collected, maintained and disclosed.

Private employers should understand that laws, regulations and common laws (resulting from court cases) either establish or diminish the employees’ expectations of privacy in the employment relationship. For example, certain laws create some expectation of employees’ privacy in these areas: electronic wiretapping, lie detector tests, credit reports, medical records and job discrimination. On the other hand, statutes that authorize alcohol or drug testing reduce that expectation.  

Employee Searches and Workplace Monitoring
Let’s take another example: employee searches. Private employers are given some latitude in conducting searches on company property.

At times, employers believe they have a legitimate business reason to conduct a search. Even so, privacy considerations stemming from common laws, as well as some state-specific legislation, created workplace privacy rights. Again, we have a situation of a balancing-act: Does the employee have a reasonable expectation of privacy in the item that was searched?  And, if so, how does the applicable law (or laws) define the parameters of that expectation of privacy? 

In certain situations, employers can be found legally responsible for employees’ illegal actions. Even so, employers should keep the employees’ privacy rights in mind in order to reduce the risk of employee claims. 

Communicate Reasons and Procedures
Employers should communicate to employees, through appropriate workplace policies, all legitimate business and safety reasons for conducting workplace monitoring and workplace searches in compliance with applicable laws. Employers should also create procedures to make sure that only necessary personal information is kept (for business reasons) and that it is accurately disclosed in accordance with applicable laws only after receiving the employee’s consent. 

Employers should also check their state laws or consult with an attorney about any relevant local, state or common laws.

Protecting employee privacy rights is a hot topic and it is a balancing act between business and personal-related issues.