Reasonable Expectation of Privacy in the Workplace

When it comes to employment, many employee privacy rights are granted by specific laws, rules, and/or regulations. For example, there are laws that create a right to privacy in employee personnel records, the use and maintenance of employee social security numbers, employee medical information, background

The answer is maybe. Sometimes, whether a privacy right exists is determined by reference to the "reasonable expectation of privacy." This is a concept which basically asks if, in the particular circumstances, it was reasonable to expect that certain conduct or communications would be considered private.

"Reasonable expectation of privacy" can be raised where, for example, an employer searches an employee's office or cubicle, looks through an employee's working files, or searches an employee's locker at work. Was it reasonable for the employee to believe that his or her office or cubicle is a private area that the employer cannot search without first asking permission?

What if the employer that conducted the office search also had a well-distributed policy in the Employee Handbook that stated: "The Company reserves the right to access and search all offices and work areas on company property, including but not limited to locked and unlocked desks, file cabinets, files and lockers, without prior notice, for business-related reasons as determined in its sole discretion. Employees have no expectation of privacy in this regard." Would the policy make a difference in whether the employer could search without violating an employee's privacy rights?

Determining whether there was a "reasonable expectation of privacy" typically involves a balancing test, and many factors must be considered to decide whether the employee had a privacy right in answer to these questions. Items to be considered are, for example, the content of the employer's policies and whether employees were put on notice of a lack of privacy, how and whether the policies were regularly enforced, the sort of privacy right involved, the nature of the employer's business interest, the nature of the employee's privacy interest, the type of information involved, the level of intrusion by the employer, etc. And depending on the circumstances, an employee privacy right may or may not be found and/or enforced.

Did an employee have a reasonable expectation of privacy when he or she used the company's e-mail system to send a threatening message to a third party or to harass another employee? What about a saved voicemail message on the company's phone system? Was it reasonable for the employee to assume that the message was private and would not be accessed by the company? Is there a reasonable expectation of privacy if an employee uses password protection to limit access to personal documents he or she creates on the corporate system or to access e-mail or voicemail? Or how about an employee who is being investigated for spending too much time at work shopping on the Internet? Was it reasonable for the employee to assume that the history of his or her Internet use on a company computer was private and would not be accessed by the company?

In the context of electronic communications systems, there are some federal and state laws that specifically address many aspects of an employer's right and ability to monitor, save, record, access, or otherwise conduct surveillance of employees' use of company electronic communication resources and systems. Generally speaking, if an employer complies with the notice and consent requirements under these laws, and writes and distributes policies consistent with the laws, it will be difficult for an employee to show that they had a reasonable expectation of privacy in the use of company-owned electronic communication systems.

As you can see, employers need to be aware that employees do have some level of privacy rights at work, depending on the subject matter. But keep in mind that while some of these employee privacy rights are held inviolate, others can be overcome by appropriate notice and disclosure from the employer and for compelling business reasons that would tip the balance in an employer's favor. Either way, you should work with your human resources, information security, compliance, and legal experts to determine which laws apply to you and how to write policies that allow you to maintain the flexibility you need to manage your workforce.