Employment Law

Workplace Privacy and Employee Monitoring

Do employees have any right of privacy in their workplace? May employers read the e-mails, monitor the web browsing histories, or search the desk drawers of their employees? Does the Fourth Amendment protect employees from unreasonable searches and seizures by their employers?

While the Fourth Amendment does prohibit unreasonable searches and seizures, it only regulates those conducted by the government. In other words, the Fourth Amendment does not prohibit searches or seizures by private companies or persons.

Reasonable Expectation of Privacy

Because employers compensate employees to perform their jobs, courts traditionally have granted employers a wide latitude to monitor their employees' work performance and productivity provided that such monitoring does not violate an employee's reasonable expectation of privacy. Courts usually act deferentially even when employers engage in electronic surveillance, such as by monitoring phone lines, e-mail accounts and Internet access, when the employer has disclosed its monitoring policy to its employees, thereby diminishing any reasonable expectation of privacy in those areas.

For example, in Ohio, a business fired an employee for stealing company property after an investigator produced an eBay printout showing that the employee had recently sold items that were identical to those missing from the business. The employee then sued his employer for invasion of privacy and alleged that the employer had obtained the printout by either accessing his password-protected eBay account without permission or searching through his briefcase. The judge dismissed the employer's motion for summary judgment because there were disputed facts regarding how the employer had obtained the printout. However, the judge did state that if the employer had a computer usage policy that "advised its employees that their computer activities on the office system were monitored," the employee would have no "reasonable expectation of privacy" in accounts he accessed from the company's computers. The case is Dwayne Campbell v. Woodard Photographic, Inc., et al., 2006 U.S. Dist. LEXIS 36680.

Furthermore, even when an employee policy specifically states that an employer will not intercept an employee's electronic communications, such protections do not apply when an employee sends an e-mail to a supervisor. A federal court in Pennsylvania found that the employee had waived any right of privacy when he voluntarily sent an email to his supervisor over the company network. "[W]e do not find a reasonable expectation of privacy in e-mail communications voluntarily made by an employee to his supervisor over the company e-mail system notwithstanding any assurances that such communications would not be intercepted by management," the court said in Michael A. Smyth v. The Pillsbury Company, 914 F. Supp. 97 (E.D. Pa., 1996).

Office Searches

While employees may have an increased expectation of privacy to their office, cabinets and personal belongings, an employer may search through those areas and items provided that they possess a work-related reason. In US v Simons, 206 F. 3d 392 (4th Cir., 2000), the Foreign Bureau of Information Services, a government agency, discovered that an employee had downloaded over 1,000 pornographic images, many of which were of children. An agency contractor entered Simons' office to remove his hard drive. Later a warrant was obtained to do further searches.

Since FBIS had a computer use policy, Simons had no reasonable expectation of privacy in his computer, the Fourth Circuit ruled. The court acknowledged that the employee did have an expectation of privacy in his office; however, the agency overcame this expectation because it had "reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct."

These cases are limited to employer searches, as opposed to law enforcement searches. They show, in essence, that while your expectation of privacy in the workplace is not nonexistent, it is extremely limited. If a computer use policy is in place, the employer needs no reasonable grounds to examine your hard drive or Internet usage. Your office and desk have more protection but are susceptible to search if the employer has reasonable grounds to suspect misconduct or criminal activity.