While having conversations, writing emails and going about business at home, the law provides privacy rights that restrict others from breaching one’s sense of security. However, when individuals go into a work setting, those rights are not as defined.
The law is unclear regarding the employer’s need to know versus the employee’s right to privacy, which can cause confusion and conflict in the workplace.
When determining the legality of a potential privacy infringement, the employer’s need for conducting a particular type of surveillance will typically be weighed against the employee’s expectation of privacy. Generally, the employer’s privacy policies, past actions concerning privacy, and whether there was a legitimate reason for the search play a role in whether there was a violation of one’s privacy rights. In addition, if an employer does one of the following, he or she is typically in violation of the employee’s expectation of privacy:
- Deception—Requiring an employee to have a medical exam and then testing urine for drugs without the employee’s knowledge. After failing the drug test, the employee is fired.
- Secret monitoring of an intrusive nature— The employer installs a video surveillance camera above bathroom stalls to detect employee theft.
- Confidentiality violation—The employer assures employees that information from a health questionnaire will remain confidential, but then shares it with a third party.
- Intrusions into employee’s personal life— The employer fires an employee because he or she is a member of an activist group whose mission the company does not support.
Suggestions for employers on to handle this issue include:
- Have clear policies in your employee handbook relating to privacy, investigations and surveillance, including use of email and company-provided electronic devices.
- Update policies as needed and inform employees of updates.
- Have all employees read and sign the policy and any updates.
- Make sure you have a legitimate work-related purpose for monitoring employees or their communications.
- Know federal, state and local laws regarding privacy and consult legal counsel if you are unsure.
For additional perspective on balancing the employer’s right to know and the employee’s right to privacy, contact the Benefits team at The Reschini Group today.
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Contact The Reschini Group with questions about privacy rights.
Copyright 2021 The Reschini Group
The Reschini Group provides these updates for information only, and does not provide legal advice. To make decisions regarding insurance matters, please consult directly with a licensed insurance professional or firm.