Should Your Employees Expect Privacy in the Workplace?

How much privacy can your employees expect at work? Today, it's possible for companies to monitor every aspect of what employees do in the office, from email and surfing the Internet to phone conversations. But when are you crossing the line?

There are specific laws, rules, and regulations granting certain employee privacy rights. For example, there are laws that create a right to privacy for employee personnel records, medical information, and background screenings. But what about cases in which no specific law creates a right to privacy? Does one exist anyway?

The answer is maybe. If no law or regulation exists, whether there is a right to privacy is determined by referring to the "reasonable expectation of privacy." If, under the circumstances, it was reasonable for the employee to expect certain conduct or communications would be considered private, then the courts might deem that a right of privacy existed.

Suppose an employer searches an employee's office or cubicle, working files, or locker. 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 permission?

What if the employer's Employee Handbook states: "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 that policy make a difference?

Determining whether there was a "reasonable expectation of privacy" typically involves a balancing test. Many factors are considered, including the employer's policies and whether employees were notified of a lack of privacy, how and whether these 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, and the level of intrusion by the employer.

Does an employee have a reasonable expectation of privacy when he or she uses the company's e-mail system to harass another employee? Is it reasonable for an employee to assume that messages on the company voicemail system are private? Is it reasonable to assume that the history of Internet use on a company computer is private?

Federal and state laws specifically address 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 employees to show a reasonable expectation of privacy in using company-owned electronic communication systems.

As you can see, employees do have some privacy rights at work. But while some of these rights are inviolate, others can be overcome if you give employees appropriate notice and disclosure and if there are compelling business reasons in the employer's favor. Work with your human resources, information security, compliance, and legal experts to determine which laws apply to you and how to write policies that give you the flexibility you need.

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.