“Privacy is a legal issue that encompasses various conflicts in American society, ranging from AIDS tests to wiretaps, polygraph tests to computerized data bases. The essential question remains: does the right to privacy take precedence over other societal concerns?” This statement by Robert Ellis Smith emphasizes the crucial importance of guaranteeing privacy in the workplace.
Employee privacy is a captivating and debatable topic in public personnel. The boundaries of employers’ influence on employees’ actions and possessions are a key concern. In public sector employment, five domains give rise to privacy issues: background checks, awareness of off-duty conduct and lifestyles, drug testing, workplace searches, and monitoring of workplace activity. Among these, the most contentious aspect is the monitoring of workplace activity due to technological advancements.
Conflicts in public employment bring up important concerns regarding privacy, propriety, legal rights, and obligations. Privacy refers to the control individuals, groups, or institutions have over sharing information about themselves. The level at which employees assert their privacy rights can differ based on the type of privacy interest and their perception of its necessity. The question of autonomy becomes relevant when considering background checks.
Autonomy pertains to personal and individual liberties, encompassing choices and lifestyle aspects that are significant for personal expression but hold no relevance to employers or the public. It is linked to intimate relationships, home and family life, as well as choices related to association and reproduction. Employees have voiced concerns about employer interference in this domain, such as making employment decisions based on personal history or conditioning employment on providing appropriate answers to inquiries unrelated to the job.
Employers can intervene in an employee’s personal life, but only if misconduct or illegal activity is involved. Off-duty conduct becomes relevant to employment when it affects job performance or disrupts organizational goals. Privacy also includes respecting a person’s dignity, allowing employees to protect their reputation and self-worth from defamation, discrimination, or mistreatment.
Individuals have the right to uphold their own beliefs and convictions, safeguarding themselves from coercion or influence. This freedom extends to the workplace, where employers are forbidden from harassing individuals based on their social class, status, or personal characteristics. Moreover, it is impermissible for employers to subject employees to humiliation or emotional distress. The privacy of employees should also be honored, and confidential proceedings must not be disclosed.
This is one area where an employee’s privacy interests may be violated in a technological environment by fellow employees who may use bulletin boards to post embarrassing information or defamatory messages to be read by others. This concept of privacy can also apply to a complaint against employers intruding into employees’ work activities. An employee may perceive constant camera surveillance, monitoring of phone calls and computer use, and meticulous tracking of duty time as indicative of an omnipresent, oppressive employer who displays minimal trust and respect for the employee. Privacy can also include proprietary privacy and the need for personal space.
“These claims may be connected directly to the Fourth Amendment, which states that individuals have the right to be safe in their bodies, homes, documents, and belongings, free from unreasonable searches and seizures. Claimants have extended this right to protection against invasive drug tests and employer intrusion into personal documents and belongings brought into the workplace. The claims are influenced by the proprietary status of the belongings or documents within the workplace and by the expectations of privacy associated with possession and the location of the activity. Therefore, employees can assert protection for their own personal belongings but cannot claim protection for activities carried out using the employer’s belongings or documents.”
Both The Electronic Communications Privacy Act (ECPA) and the Supreme Court case O”Conner v. Ortega discuss the proprietary distinction and employee privacy. The ECPA offers privacy protection for employees but allows surveillance under the “business extension” exception, which means there is no expectation of privacy on devices provided by the employer. The Supreme Court addressed employee claims of privacy in personal space in the O”Conner v. Ortega case.
The court acknowledged that workplaces may be subject to the Fourth Amendment, granting employees privacy rights. Nonetheless, a balance must be struck between employee and employer interests. This equilibrium permits employers to investigate and search employee possessions within their premises. While the court emphasized that unreasonable searches are forbidden by the Fourth Amendment, employers can establish conditions deeming most searches reasonable. Additionally, privacy in the workplace has been debated through a First Amendment lens, encompassing expression and conversations.
“The claim encompasses conversations between individuals. Katz v United States was the initial significant case concerning privacy in electronic communications. The dispute revolved around whether a government-placed electronic bug on a public telephone booth violated the Fourth Amendment. The government contended that there was no privacy violation as the telephone booth was a public location.”
The court dismissed the claim that phone conversations made by an individual in public areas are not private. They stressed that intrusion is determined by whether the person had a reasonable expectation of privacy in the specific situation targeted by the government. Monitoring employee conversations in lounges during work breaks would unquestionably be considered as monitoring conduct beyond the employer’s authority. The greater expectation of privacy for verbal conversations is recognized in statutes such as the Federal Wiretap Act, which prohibits both private and public employers from intercepting and recording employees’ “wire communications”.
Protecting the conversation itself is important. For example, employers can use cameras to monitor employees and enhance security. However, giving those cameras the ability to record audio may infringe upon the Wiretap Act. Similarly, employees may accept surveillance in certain areas like cashier windows or mail-rooms for security purposes, but they object to having their conversations recorded.
The argument of privacy in conversation or expression is often raised when employers punish employees for violating organizational policies or rules in their use of cyber networks. Users of these networks often see computer bulletin boards’ public message areas as a platform where they, as “netizens,” can freely communicate. Some observers compare computer bulletin boards to “electronic soapboxes” and the open access areas to public spaces like streets, parks, and commons. They also equate them to open radio talk show lines in contemporary America. However, these claims are questionable since the communicators use public message areas, potentially exposing their conversations to an indefinite public.
Whatever the semantic distinction between private and public, these cases represent the issue of permissible or non-permissible intrusion by the employer into employee activity, which the employee regards as none of the employer’s business, hence private. This open marketplace of ideas model may work for the social domain of autonomous persons. However, Robert Post draws a clear division between public and non-public spheres, such as the workplace. In the workplace, managerial control and social interdependence of employees and executive officers require maintaining a proper work environment. In this environment, sexist, racist, harassive, defamatory, and insubordinate speech must not interfere with the agency’s functioning. After acknowledging that individuals in the workplace have some privacy rights based on discussed needs, and defining those rights in terms of commonly accepted expectations of being immune from intrusion, courts balance employees’ privacy claims against employers’ legitimate claims.
The courts have previously allowed violations of public employees’ Fourth Amendment rights in specific situations. These situations include when the intrusions are reasonable, when the employer has a compelling interest, and when the intrusions are job-related. Reasonableness is determined by factors such as the employee’s expectation of privacy, the purpose of the intrusion, and how it is carried out.
Two important considerations for determining reasonableness are: 1) giving advance notice to employees and informing them about surveillance rules and regulations; and 2) obtaining consent from employees before conducting searches or eavesdropping. Implied consent may exist through acceptance of employment but should only apply to business-related conversations rather than personal ones.
A public employer can safeguard against lawsuits by enacting an E-mail monitoring policy that notifies employees of potential E-mail message surveillance. The Internet has transformed various aspects of our lives, including business, daily routines, shopping, appointment arrangement, and more. Nonetheless, as the number of Internet users rises and extensive information is shared, new challenges emerge. It is indisputable that the Internet has considerably enhanced computer capabilities.
Despite these progressions, there are significant worries regarding the absence of online confidentiality. Individuals anticipate their vital information shared on the Internet to be protected and shielded against unauthorized entry. Unfortunately, there is a possibility for outside entities to intercept and examine the transmitted data over the internet.
Privacy has become a long-standing concern due to the increasing flow of information. Individuals are now looking for ways to protect their personal information while the government opposes giving ordinary citizens control over computer security. Despite efforts to regulate privacy measures, desired results have not been achieved. The significance of privacy is acknowledged by individuals, governments, and businesses alike as they all endeavor to effectively safeguard their data.
Employers are generally justified in conducting surveillance on employees when there is a compelling need. Such a need arises when the employer is dealing with or preventing harmful behavior towards other employees, including racism, sexism, harassment, or obscenity. It should be noted that this justification specifically applies to the United States.
The Court in the case of Lampley affirmed Congress’ compelling interest in protecting individuals from fear, abuse, and annoyance by upholding the constitutionality of 47 U.S.C.
The federal crime of making obscene or harassive phone calls is covered by 233. Employers also have a responsibility in this matter, which is supported by anti-discrimination laws such as Title VII of the Civil Rights Act of 1964. Title VII prohibits direct harassment and the creation of hostile work environments.
S. Constitution provides significant privacy protection in residential spaces but not in workplaces. In response to the limitations of federal regulations, certain states have established their own privacy laws. Although federal law supersedes state laws, employers typically comply with both if the state laws offer higher levels of protection.
The map on the next page displays states that have banned certain activities, such as paper-and-pencil honesty tests that lack scientific validation. Workers using e-mail, voice mail, or telephone do not receive substantial privacy protection in any state, nor are intrusive psychological tests prohibited. As long as national workplace laws cannot be passed, the maps will continue to indicate limited overall support for worker privacy based on state laws.
