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Employee Privacy & The Workplace

From G&A Partners

While social media might make it seem like it’s impossible to ever have another private moment, the concept of personal privacy is still a very real and enforceable legal concept. When you write or say something in the comfort of your own home, the law does provide you with the right to privacy and restrict others from breaching that sense of security. Almost the moment you step out your front door, however, your right to privacy becomes less concrete, and can vary considerably depending on where you go after that.

One setting in which privacy laws can seem particularly fuzzy is in the workplace, where it can be difficult to draw a firm line between the information an employer has needs to know in order to run their business and their employees’ rights to privacy. All of this uncertainty can cause serious problems and land both employers and employees in hot water when not handled properly.

Legal considerations

The Fourth and 14th Amendments to the Constitution are among the highest laws in the nation used to establish the right to privacy, even though neither specifically use that phrase: the Fourth Amendment protects citizens against “unreasonable search and seizures” from federal entities, and the 14th Amendment extends the same protection from state and local governments. (Neither mentions private entities.) Nonetheless, in multiple rulings the U.S. Supreme Court has found that these amendments imply a right to individual privacy.

There are also a number of applicable federal laws that more directly address workplace privacy, including the Electronics Communication Privacy Act, the Equal Employment Opportunity Act and the Employee Polygraph Protection Act. Some states have also passed employee privacy laws.

Best practices for employers

Generally speaking, the law permits employers to monitor or search an employee only if there is a reasonable business reason for doing so (i.e. when an employee is suspected of stealing company property). The scope of these searches is limited to non-personal areas of the employee’s workspace and must focus on property owned by the company.

The law generally states that employers can conduct these searches only if there is reasonable business reason for doing so, such as suspecting an employee of theft. These searches must also be specific to only non-personal areas of the employee’s office and must focus on company-owned property such as business papers.

As an employer, a good gauge to use when it comes to determining whether you are allowed to monitor or conduct a search of an employee or their workspace is how much privacy your employees think they have. If, for example, your company’s employee handbook expressly states that internet activity on company-provided devices are subject to search, or that phone calls made using office phones may be recorded, or that employees may be subject to random searches, your employees’ expectations of privacy are limited. These types of employee policies are designed to minimize your company’s exposure to liability should you ever face any litigation related to an employee search.

If your company wants to implement policies or procedures addressing expectations of privacy or employee searches, here are a few important points to keep in mind:

Have a clear, written policy regarding employee searches and monitoring.

Communicate this policy to all employees, in writing. Your company can also choose to make signing a form acknowledging and consenting to the search policy a condition of employment for new employees.

Only monitor or search employees for legitimate business reasons (i.e. for the purposes of preventing employee theft).

Never force an employee to submit to a search. As an employer you can, however, make submission to reasonable searches a condition of continued employment with the company.

[Source: Texas Workforce Commission]

It’s also a good idea to consult with your company’s legal counsel regarding what you can and cannot include in your employee search and investigations policy, as additional laws may apply to your company depending on the size of your workforce or where your offices are located.

While employee policies like an employee search and investigations policy can prove to be invaluable tools protecting your business against the risk of an employment-related lawsuit. But the process of creating effective and compliant employee policies can be overwhelming. That’s why G&A Partners has a team of HR professionals available to assist our clients with employee handbooks, compliance issues, recruitment strategies, safety manuals and more.

Learn how G&A Partners can help you protect your business and employees through HR labor law and compliance services. Contact us by phone at 866-634-6713 to speak with an expert or visit to schedule a free business consultation.