Labor & Employment Law

Privacy Rights in the Work Place

By Michael Goldstein, Esq.

Employees have rights in the workplace when it comes to employer intrusion into their personal business and their privacy. In Section 652B of the Restatements (second) of Torts it provides information regarding intrusion. It states that ?one, who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.?Intrusion in a work place setting could include such things as; an inquiry into private facts, physical searches of persons or the premises, drug test and surveillance and monitoring of employee conduct. In all of these cases the balancing test is applied to determine whether or not the intrusion would be highly offensive to a reasonable person.

The courts of Massachusetts are interested in protecting employees from questioning about personal matters that are absolutely no business of the employer. However under some circumstances inquiries concerning non-workplace conduct are permissible if it can be shown that there is a legitimate purpose for the information. When it comes to the degree of intrusion into an employee?s rights, the nature of the employee?s job could potentially be significant. If there is an employee who is high level and is considered to be a confidential employee then the information they disclose should be much broader compared to someone who mows lawns or performs janitorial work.

When it comes to the issue of privacy in the workplace there are very fine lines as to what intrusion is and what should be expected. Normally employees expect to have privacy in regards to their office at work and such things as their desks, files, lockers and brief cases. Some ways employers fix the issue of intrusion into an employee?s office and their belongings in their desks, is to discourage employees from keeping personal material in these locations and also to warn employees in advance that those areas could be subject to search if the employer feels it necessary. An employer can enlarge or diminish employees expectation of privacy in their workplace is by publishing the employer?s policy in handbooks that should be given to all employees in the workplace. However although the employer?s should publish workplace privacy policies in their handbooks, if an employer can show a reasonable expectation of privacy exists, the federal courts have held with the decision that a public employer may conduct a work-related search in an employee?s office, desk and their files if they have ?reasonable cause? for work-related non-criminal investigatory reasons.

Lastly, when determining whether an employer?s disclosure of private information of an employee is actionable, the balancing test will be between the employer?s legitimate business interest in telling the information to the recipient and the employee?s privacy expectation. The balancing test will be used to determine whether the interference of privacy was unreasonable, substantial or serious. If the information is something that its public disclosure would offend a reasonable person then the employer?s disclosure is not necessary. If an employer?s disclosure of private information may invade the employee?s privacy rights if the disclosure exceeds reasonable necessity. An example of this is it an employer has an interest in assuring that an employee is psychologically fit to perform their job doesn?t give permission to the employer to publicize its critiques of the employee in a newspaper.

Employees have many privacy rights in the work-place; however it can only be determined whether or not the employer is intruding upon the employee?s privacy rights with the balancing test or if the intrusion is offensive to a reasonable person.

Full post as published by Massachusetts Employment Law Blog on December 20, 2007 (boomark / email).