The issue of workplace privacy can be a moving target for employers. When considered from the perspective of employee liability, the target is even more elusive. There are cases, statutes, and codes that address some of an employer's responsibilities to maintain the privacy of personal information about employees. But there are lines of privacy to be respected between employees, but this is not talked about as often nor are these lines well drawn.
Employees probably know that their employers are watching what they do with company-owned electronic communication resources (such as e-mail). They also probably know there are corporate policies addressing privacy and confidentiality issues. But many employees may not think about the fact that other employees have access to their private information and whether there are laws to protect that information against misuse by their coworkers.
Privacy Issues Between Coworkers
In early 2007, Wal-Mart was confronted with a scenario that could raise some of these issues. Wal-Mart fired a systems technician after it learned that he allegedly recorded telephone conversations between a newspaper reporter and the corporation's public relations employees. He used company-provided equipment to make the recordings. In addition, the technician allegedly intercepted text messages involving persons who were not Wal-Mart employees and did so without authorization. While the true facts are not known at the time of this writing, it is reasonable to assume that the technician probably violated Wal-Mart's policies regarding use of company equipment. It remains to be seen, however, whether the actions of the technician also violated the privacy rights of other employees and may have exposed him to legal liability to those employees for doing so.
The Wal-Mart scenario begs the question: Are employees required to protect coworker information as private and if so, what recourse does an employee have against coworkers? The answer is that it depends on the type of information, the particular circumstances, who had access to the information and why, who used it, and how was it used. It also depends on the federal and state statutory laws and common laws that may apply. But generally speaking, if the answers to these questions line up "properly," disclosure and/or misuse of employee personal information by coworkers can give rise to personal liability to the impacted employees.
A General Right to Privacy
Many states recognize a general right to privacy that can be enforced by one employee against another. For example, California's state constitution has a right to privacy included in Article 1, Section 8. In other states, the right to privacy may exist by virtue of state statutes or codes, and/or common law. Whatever the source, there are several different types of civil claims for invasion of privacy, each of which addresses a different type of privacy violation. However, regardless of the type of privacy claim, the important point is that employees can be held liable to each other for misuse of some kinds of private information belonging to other employees, even if their access to the information was authorized in the first place.
Other laws that can give rise to claims between employees for disclosure of personal employee information also include defamation in the form of libel or slander. But whether it's a direct claim for violation of the right to privacy or for defamation, the bottom line is that employees have obligations to protect personal information belonging to other employees or they may be exposed to legal liability.
What Employees Should Know
So what should employees understand about protecting the privacy of other employees? Well, that's a big question without a simple answer. At the very least, it is important that employers write and distribute clearly written policies about who is authorized to access such information, the requirement to maintain the privacy of the information, and the systems or processes employees need to follow to protect it. Also, it's a good idea to include the obligation to protect the privacy of employee information in whatever confidentiality agreement employees are required to sign as a condition of employment.
Avoid Violating the NLRA
Of course, employers should be wary of an absolute ban on employees discussing private information about other employees even if that information is considered confidential by the employer. Things like salary, benefits, consideration for promotion, etc. may fall into this category. That's because some states, like California, make it illegal to prevent employees from disclosing their salary. But it's also because there is some legal authority that an all-encompassing prohibition on those sorts of discussions could violate the National Labor Relations Act (NLRA). The NLRA allows employees in unionized and non-unionized workplaces to engage in "concerted activity" and any rules that could be interpreted to prohibit them from discussing their terms and conditions of employment could result in an NLRA violation. Employers can avoid that trap by carving out appropriate exceptions for protected activity.
Consult with legal counsel and human resources professionals about whether your company's policies clearly articulate the types of personal employee information that needs to be protected and how to protect it. And be sure that you've widely distributed the rules for how to maintain the security of that information at work. The more employers can do to educate employees on these issues, the lower the risk to both the employer and employee that private information will be compromised in the first place. That's just good business.
Barrie Gross is former Vice President and Senior Corporate Counsel (Employment Law) for an international Fortune 1000 company and is a regular contributor to AllBusiness.com. She is the founder of Barrie Gross Consulting, a human resources training and consulting firm dedicated to assisting companies to manage and develop their human capital. Visit www.barriegrossconsulting.com to learn more about Barrie and the services BGC provides.
Note: The information here does not constitute legal advice and should not be relied upon as legal advice. If you have a legal issue or wish to obtain legal advice, you should consult an attorney in your area concerning your particular situation and facts. Nothing presented on this site or in this article establishes or should be construed as establishing an attorney-client or confidential relationship between you and Barrie Gross. This article is provided only as general information, which may or may not reflect the most current legal developments or be complete.