Privacy Laws in Employment
Overview of Privacy in the Workplace
In 1928, Supreme Court Justice Louis Brandeis observed that the right most valued by Americans was “the right to be left alone.” This is also known as the constitutional right to privacy. Although it is very important to many individuals, privacy is not a right that is well protected in the workplace. Some state constitutions specify a right to privacy, and in those states, employees may have a slightly stronger claim to privacy in the workplace. Many employers advise in employee handbooks or other documentation that there will be no right to privacy in an employee’s desk or on the employer’s communications technologies.
Employers have broad leeway, but there are some limits. Employees have the right to keep private facts about themselves confidential and the right to some degree of personal space. An employer that discloses private facts or lies about an employee may be held accountable in a civil action for invasion of privacy or defamation. Courts usually decide whether the employee had a reasonable expectation of privacy under the circumstances and balance it against the employer’s reason to seek the information.
For example, if an employee has never been told that their briefcase, purse, or personal locker in an employee break area could be subject to inspection by their employer, and their employer was simply conducting a random search, they might be found to have a reasonable expectation of privacy in these items.
What about private information in personnel files or medical records? State laws govern who can access confidential information in an employee’s personnel files.
The Americans with Disabilities Act includes strict provisions about handling information obtained after an offer is made to a disabled employee. Employers covered by the ADA have to keep medical records and related documentation confidential and separate from other personnel records. They should only be accessible by first aid workers, the employee’s supervisor when a reasonable accommodation is needed, government officials, and insurance companies that require a medical exam. The Health Insurance Portability and Accountability Act (HIPAA) also requires employers that provide group health plans to honor certain privacy obligations.
However, surveillance, drug testing, and lifestyle discrimination by employers are routine. There are limited remedies if an employee feels their employer has invaded their right to privacy in these areas.
Workplace Surveillance
Workplace monitoring and surveillance is common and not generally prohibited by federal law. Employers monitor numerous aspects of an employee’s work, especially with regard to communications technology owned by the employer, such as email, telephones, and internet use. Many technologies leave “digital footprints,” so even if an employee tries to delete them, they may be recovered by a curious or concerned employer with the help of the company’s IT person or department. Employers usually cannot access personal devices, unless employees are using the employer’s Wi-Fi network.
In general, an employer has a right to monitor workplace communications, and employees should not expect that they have substantial rights to privacy in the workplace. Many employers require employees to agree and adhere to an employee handbook that specifies the workplace policy with regard to communications technology.
Although an employer can monitor work-related calls, it must stop monitoring once it realizes that the employee is on a personal call. If a company gives an employee a work cellphone, it can look at their text messages, even though some may be personal. In most cases, an employer can videotape employees, but courts have prohibited employers from videotaping employees in locker rooms and bathrooms. A small percentage of employees—usually government employees, senior executives, academics, athletes, and a few other types of workers who are represented by labor unions that have fought for their privacy rights—are better protected from invasions of privacy.
Drug Testing
Similarly, employers are given broad rights to require drug testing for job applicants. In most states, there are more restrictions on drug testing for existing employees than for job applicants. Although drug testing is a privacy issue in a few states, whether or not this is permissible in a certain case may depend on state statutes and local ordinances rather than federal law. Federal law covers drug testing only in certain industries, such as military contracting.
Lifestyle Discrimination
What about when employees are away from the office? Some states have enacted “lifestyle discrimination” statutes to prevent employers from discriminating against employees based on off-duty actions.
Employers that engage in lifestyle discrimination are often concerned with how certain employees who engage in riskier behavior would affect their premiums for healthcare benefits. Employees who smoke, drink, or eat excessively in their off-hours are more likely to require more medical treatment, which increases premiums.
Most lifestyle discrimination statutes are narrow, applying to employees who smoke on their off-hours or offering protection based on sexual orientation. The broadest protection offered against lifestyle discrimination is found in the states of California, Colorado, New York, and North Dakota, which prohibit discrimination that is based on a lawful activity by an employee off-premises during non-working hours. Other states prohibit lifestyle discrimination that is based on an employee’s use of “lawful products” or “lawful consumable products” except in certain circumstances.
