“Privacy. There seems to be no legal issue today that cuts so wide a swath through conflicts confronting American society: from AIDS tests to wiretaps, polygraph test to computerized data bases, the common denominator has been whether the right to privacy outweighs other concerns of society” This quote from Robert Ellis Smith explains, in one sentence, the absolute need to ensure privacy in the workplace. One of the most interesting, yet controversial, areas concerning public personnel is employee privacy. What limits are there to employers’ intrusions into, and control over, employees’ behaviors and personal properties?
There are five major areas which trigger privacy matters in the area of public sector employment: background checks, cognizance of off duty conduct and lifestyles, drug testing, workplace searches, and monitoring of workplace activity. Of these five, the fifth area of privacy, monitoring of workplace activity, is the most controversial. The reason for this is the advance of technology. These conflicts open anew the basic questions as to what is private, what is propriety, what legal rights an employee possesses, and what an employee’s obligations and responsibilities are within the sphere of public employment.
Privacy has been defined as “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others”. The privacy claims of employees can vary in terms of the privacy interest involved and the conception of a need for privacy. In terms of background checks, the issue of autonomy is presented. Autonomy involves ones own personal and individual liberties.
Autonomy embraces areas of central life choice and lifestyle that are important in terms of individual expression, but irrelevant to an employer and of no public concern. It has been associated with marital and other intimate relationships, home and family life, and association and reproductive choices. Employees have raised issues of employer intrusion into this area where the employer makes employment decisions on the basis of something in an employee’s personal history, or conditions employment on appropriate responses to inquires about personal activities which are not job-related.
An employer may have interests which permit some limited intrusion into this area, if the behavior involves misconduct or illegal activity. Off-duty personal conduct may be regarded as relevant to employment if the misconduct has a connection to the employee’s performance within the organization, or if the misconduct negatively impacts the organization’s mission. Privacy also hinges on a respect for a person’s inherent dignity.
An employee can claim a protection of his reputation and sense of self-worth against defamation, discrimination, or personal abuse. A person also has the right to maintain his personal beliefs and convictions against coercion and manipulation. Applied to the environment of public employment, this conception would prohibit any employer from harassing individuals on the basis of their class or status, or their personal characteristics. It would prohibit employers from shaming employees and causing emotional distress in the process.
It would prohibit an employer from breaching the confidentiality of an employee’s record or publicizing closed hearings concerning the employee. 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 conception of privacy can also be extended to a claim against pervasive intrusion by employers into employees’ work activities.
An employee may feel constant camera surveillance, monitoring of phone calls and computer use, and an accounting for every minute of duty time reflects an omnipresent, oppressive employer, who exhibits little trust and little respect for the employee. Privacy may also be seen as proprietary privacy and a need for “personal space. ” These claims may be tied directly to the Fourth Amendment, which holds that, “It is the right of the people to be secure in their persons, houses, papers, and effects from unreasonable searches and seizures.
This right has been extended by claimants to protection against bodily intrusions in involuntary administration of drug tests and to protection from employer intrusion into personal papers and effects brought into the workplace. The claims are governed by the proprietary status of the effects or papers located within the workplace and by the expectations of privacy attached to possession and to the location of the activity. Thus, employees may assert a protection for their own personal effects but can not claim a protection for activities conducted through the use of the employer’s papers or effects.
The proprietary distinction has also been used in The Electronic Communications Privacy Act (ECPA), which provides protection of privacy interests of employees from employer surveillance, but allows for surveillance to be undertaken under the “business extension” exception. This excludes an expectation of privacy on the phones or other electronic devices provided for and used in the business. The issue of employee claims of privacy for personal space was addressed by the Supreme Court in O’Conner v. Ortega.
The court said that while the Fourth Amendment could extend to workplaces, and privacy interests might be asserted in workplace environments, the interests of the employee could be balanced against those of the employer. A balancing of interests allows the employer to initiate investigations and to conduct searches of employee effects upon the premises of the employer. The court made clear that the Fourth Amendment protection was a prohibition on unreasonable searches, but an employer could define the conditions to allow most searches to be reasonable.
Privacy in the workplace has also been asserted on the basis of First Amendment rights: a “privacy of expression” or a “privacy of conversations. ” The claim is extended to exchanges of speech between persons. The first major case that addressed privacy in the area of electronic communications was Katz v United States. At issue was whether an electronic bug placed by the government on a public telephone booth was a violation of the Fourth Amendment. The government argued that there was no invasion of privacy because the telephone booth was a public place.
The court rejected that argument noting that an individual’s telephone conversations are private even if they occur in public places. The decision also reinforced the view that an intrusion is to be defined in terms of whether the person had an expectation of privacy in the situation which the state singles out for intrusion. The monitoring by the employer of employee conversations in lounges during work breaks would most assuredly be regarded as a monitoring of behaviors outside the employer’s sphere of interest.
The heightened expectation of privacy attached to oral conversations is recognized in legislation like the Federal Wiretap Act, which prohibits both private and public employers from intercepting and recording the “wire communications” of employees. It is the conversation which is protected. For instance, employers may use cameras to observe employees and to provide security. But providing those cameras with audio capability could violate the Wiretap Act. This is consistent with employees who may tolerate surveillance of bursar windows or mail-rooms for security reasons, but draw the line on any attempt to record their conversations.
This privacy of conversation or expression claim is commonly raised when employers sanction employees for violation of organizational policies or rules in their use of cybernetic communications networks. Users of these cybernetic networks are inclined to view the public message areas of computer bulletin boards as public forum in which they as “netizens” can freely communicate. Commentators have characterized computer bulletin boards as “electronic soapboxes,” and the open access areas as fora equivalent to the streets, parks, and commons of an older America, and the open radio talk show lines of contemporary America.
These particular claims strain the concept of a violation of privacy since the employee communicators use public message areas which can involve exposure 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 sharp division between public and non-public spheres like the workplace where managerial control and social interdependence of employees and executive officers requires a maintenance of a proper work environment and where sexist, racist, harassive, defamatory, and insubordinate speech must not interfere with the functioning of the agency.
After recognizing that persons in the workplace had some privacy rights based on the particular needs discussed, and after defining those rights in terms of commonly accepted expectations of being immune from intrusion, the courts balanced the privacy claims of employees against the legitimate claims of employers. Historically, the courts have permitted incursions into the Fourth Amendment rights of public employees if the intrusions are reasonable, if the employer has a compelling interest, and if the incursions are job-related.
Reasonableness is a standard that applies to the expectation of privacy on the part of the employee, the purpose of the intrusion, and the means used to effect the intrusion. Two important touchstones of reasonable policy include 1) prior notice with publication of rules and regulations to employees that surveillance may be conducted on their activity, and 2) steps to obtain consent from employees to be searched or eavesdropped. Such consent may be implicit in accepting employment, but even where consent may be obtained, it is to be limited to business related conversations, not personal ones.
A public employer’s best protection against suit is to implement an E-mail monitoring policy that provides a warning to employees that E-mail messages may be monitored. The Internet has been a very instrumental technology that has greatly advanced the ways in which we now do things such as; business, daily activities, shopping, scheduling appointments, and many other things. And with more and more people using the Internet, more and more information being passed over the Internet, more problems arise. The Internet has been an advance in technology that has greatly increased the capacities of a computer.
These new capacities have been the cause of some serious problems though. One very important trouble is the lack of privacy on the Internet. People pass much important information over the Internet and they expect it to be safe from others. Information passed over the Internet can in fact be intercepted and read by other people. For many years, this has been happening, and it has always been a problem, but with more and more information being passed through, people want something to ensure their privacy.
The government does not want to allow everyday people the privilege of computer security. Although they have tried to place laws on the uses of some methods of privacy, they have not been as successful as they had hoped. Privacy is important to people, governments and businesses, and finding a method to protect their information is also a concern. Employers are generally on firm ground for conducting surveillance on employees when a compelling interest is involved.
A compelling interest is indicated when the employer is reacting to, or attempting to prevent, employee behavior that is injurious to other employees, such as racist, sexist, harassive or obscene behavior. In U. S. v. Lampley, the Court affirmed Congress’ compelling interest in protecting individuals from fear, abuse and annoyance when it upheld the constitutionality of 47 U. S. C. 233, which makes the communication of obscene or harassive phone calls a federal crime. Employers have no less a responsibility.
The responsibility is reinforced through anti-discrimination statutes like Title VII of the Civil Rights Act of 1964, which has been interpreted to prohibit direct harassment and creation of hostile environments in the workplace. The U. S. Constitution gives substantial protection to privacy in the home, but not where Americans make a living. To make up for federal inadequacy, some states have enacted their own privacy statues. Federal law takes precedence, but where state laws provide greater protection, employers are usually subject to both.
The map on the following page shows states that ban various activities, including paper-and-pencil honesty test, which have not been scientifically validated. No state gives strong privacy protection to workers using e-mail, voice mail or telephone, nor does any state prohibit intrusive psychological testing. Unless or until national workplace laws can be passed, the maps illustrations are going to remain the same with state laws providing only spotty overall support for worker privacy.
