Rights, Policies Employee Monitoring, Privacy Rights & Confidentiality

  1. This article will discuss whether rights of privacy in the workplace with a brief discussion on employee monitoring.

    Understanding Your Right to Privacy at Work

    You may feel that your employer has invaded your privacy at work and if so then you may be thinking about suing your employer in a court of law. While there are a number of state and federal statutes which will provide employees with some protection of their privacy at work, most often policies may determine whether an employee has or should expect a right to privacy. Employer monitoring of employees are frequently disclosed and defined within employee handbooks, memos and in union contracts. For example, if the employee handbook states that an employee will be notified when telephone monitoring may take place, the employer generally must honor that stated policy.

    The Expectation of a Right to Privacy at Work

    When making a case, an employee will usually have to argue that they had an expectation of privacy with regards to actions based on company policies, common sense or past practices. For instance, an employee may feel that they have a right to privacy in a common “changing room” for clothing which is customarily a place for people to discreetly change clothing without revealing themselves to any third party. If there is an employee handbook, be sure to read it thoroughly to determine whether the company plans to monitor employee activities. The employee will have a stronger argument if they can prove that the employer has engaged in some of the following actions when collecting information on the employee.

    Workplace Monitoring and Confidentiality

    1. Intrusive or Secret Monitoring

    In general, an open and visible monitoring system known to employees is not a violation of employee privacy since the employee has knowledge and warning of the monitoring system. For example, if a retail store decided to install security cameras above cash registers which are visible to staff, such monitoring would generally be considered a legal method to deter stealing by staff. However, if the employer were to install hidden security cameras behind the mirrors in private changing rooms and the staff were not informed of these cameras, such an act might be considered to be an invasion of privacy of the employee. Types of monitoring which may occur are
    • Telephone Monitoring

      in many instances your employer can privately listen to your phone calls made using the company’s telephone and communications system.
    • Voice Mail Monitoring

      In most instances an employer may monitor voice mail in the same way and for the same reasons it can monitor telephone calls.
    • Text Message Monitoring

      If the text messages were sent or received using the company mobile phone, generally a company can monitor these messages.
    • Computer Monitoring

      This can occur in various ways, logging keystrokes, reading documents using administrative access to employee accounts. In many instances an employee may not be aware it is occurring. Although such practices may be legal, they should be disclosed in an employee orientation or handbook if available.
    • Video Surveillance

      Generally video monitoring is acceptable and an employee not need be told about the monitoring, with some exceptions.

    2. Breach of confidentiality

    In some instances, you may have an employee right of confidentiality regarding your personal information. What if an employer collected personal information about you and told you that this information was only to be used by the company - but later you discovered that the company had shared this information with a potential employer with whom you applied for a job? This might be considered a breach of your confidentiality.

    3. Deception

    In general, an employer is not allowed to deceive you with regard to employee testing and monitoring purposes. For example, suppose you were told that your submission of a urine sample was merely for participation in a routine medical health exam with nothing mentioned about drug testing. If the employer then tested your urine sample for drugs and you were fired as a result, such action could be considered a wrongful invasion of privacy.

    Whom to Contact for an Invasion of Privacy at Work

    If you feel that you have had your privacy violated at work then you can speak to someone in your state’s labor department for information about the privacy protections which are in place in your state. If you wish, you may also want to obtain a legal consultation with an employment attorney, which is usually free.
    Employment & Labor:
    Employee Privacy

    Michael M. Wechsler

    Michael M. Wechsler
    Michael M. Wechsler is an experienced attorney, founder of TheLaw.com and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

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