In the age of electronic communications and technology, it has become quite easy for employers to monitor the actions of employees in the workplace. E-mail accounts, internet usage and telephones are easily monitored by employers. Employee offices and even personal belongings are sometimes searched as well. Many employees are uncomfortable in this situation, which they see as an invasion of privacy. Employers argue that it is necessary to prevent theft and boost productivity.
Reasonable Expectation of Privacy
Common law as well as many state constitutions or statutes recognize a general right of privacy, which, in theory, extends to employees in the workplace. Whether an employer has violated an employee's right of privacy generally depends whether the employee had, under the circumstances, a "reasonable expectation of privacy" regarding whatever was searched or monitored. As a practical matter, most employers implement policies which put employees on notice that, for example, their communications using company equipment may be monitored. As a result, employees may be hard-pressed to claim they reasonably expected such communications to be private.
In general, employee offices and belongings are entitled to protection from unreasonable searches. However, employers may conduct searches if they have work-related reason to do so. In addition, some companies routinely inspect employee belongings when entering and leaving the workplace. If this activity is governed by written documentation and applied equally to all employees, it is likely to be unheld by a court.
Many employees argue that their federal constitutional rights are being violated. The Fourth Amendment to the U.S. Constitution does indeed provide protection against unreasonable searches and seizures. However, this protection only extends to searches and seizures that are carried out by government agencies. It generally does not apply to private entities.
Electronics Communications Privacy Act
Under the terms of the Act, employers are not permitted to monitor employees' personal calls, even if they are placed on company telephones, unless the employee consents to such monitoring. Employers are also prevented from screening, deleting or otherwise interfering with employee voicemails without their consent. Again, however, many employers maintain a written policy of screening all communications. Such a policy may be used to demonstrate that the employee consented to phone call or voice mail monitoring.
Random post-employment drug testing has been the subject of extensive debate. Consequently, most states have passed legislation that specifically addresses post-hire drug testing. In general, drug testing can only be performed after a work accident or for other cause. However, random drug testing is usually permitted in positions that carry high risk to the employee or others. As state law varies widely on this issue, it is best to seek the advice of an employment law attorney.
In general, workplace privacy issues heavily favor employers. The attitude of the courts has generally been that because employees are financially compensated for performing work, the employer has a legitimate interest in assuring high productivity levels. Therefore, the rights of employees to privacy in the workplace are generally less than the privacy rights afforded in other situations. Nonetheless, employers do not have complete freedom to unreasonably monitor employee activities.