It used to be easy, says Attorney Matthew Effland. If you spotted someone reading on the job, you just told them to go back to work. Now, they have headphones on—are they listening to an audio conference on HR compliance, music that relaxes them, or a digital book?

Unfortunately, you are going to have people who abuse your technology. They are going to send e-mails of the wrong nature, access sites they shouldn’t, or simply spend the day doing things that aren’t related to their jobs, Effland says. And when you try to discipline, they'll yell, "Constitutional privacy rights!"

Effland is a shareholder at the Indianapolis office of the national law firm Ogletree Deakins. His comments originally appeared in our sister publication, the HR Manager's Legal Reporter.

It’s Misunderstood!

How many of these outraged responses have you heard?

          But it’s my computer! It’s sitting on my desk.
          What I do from my home computer is my business!
          You were listening to my private phone calls?
          You can’t go through my e-mail—it’s private.

That’s the kind of pushback HR managers are getting from employees, says Effland.

The ‘Constitutional Right to Privacy’

Do employees have a constitutional right to privacy at work? Many employees think that they do. Here’s an example from Effland.

Someone is stealing Subway® sandwiches from the refrigerator. To find the culprit, after hours you secretly go around to each desk looking for Subway wrappers.

You find them in Joe’s office in his trash can, and the next day you discipline Joe. He says, "What are you doing going into my office? The door was shut; you can’t do that!" In a government agency, that employee may be right; in private firms, however, probably not, says Effland.

Limiting Expectations in a Government Setting

As private citizens we have rights against “unreasonable search and seizure,” and when we work in a government setting, we essentially have that same protection.

But that varies based on the job, Effland notes. To limit expectations in a government setting, figure out, based on the individual’s job, what the expectation of privacy should be.

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For example, the person who runs the ticket booth at the government parking lot has little expectation of privacy. Others share her booth. Anyone can look in. She has some privacy rights, but not many.

On the other hand, the governor’s chief of staff has a high expectation of privacy in his office.

Privacy in a Private Setting

For all employees not in public or government settings, there is no constitutional right to privacy at work, says Effland. It’s easy—if you don’t want the boss snooping, work somewhere else.

Creating a Right to Privacy

However, if the organization is not careful, it can unwittingly create a right of privacy by its actions.

For example, if you tell people “We won’t search,” “We won’t monitor,” then you’ve probably established their right to privacy.

As another example, if you say “Don’t worry, just shut your door, no one will ever go in there,” you might have set up an expectation.

Keys, passcards, and passwords may also create an implied right to privacy.

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How to Erase an Implied Right to Privacy

Limiting expectations is the key to erasing any implied right of privacy, says Effland.

  • Do not provide assurance of privacy beyond what is necessary.
  • Make sure handbooks state explicitly that at work, employees have no expectation of privacy.
  • When giving out anything that might indicate privacy—like keys, passcards, or passwords—clarify with employees and put in your policy that this does not confer any privacy rights.
  • Avoid obvious errors. Naturally, you don’t want to spy on people in the bathroom or put cameras in the showers—that’s just common sense. By the way, Effland adds, courts will bend over backward to find a way of getting a company that tries something like that.

In tomorrow's Advisor, we'll give some of Effland's tips on e-mail, and take a look at BLR's extraordinary website, HR.BLR.com.

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