For companies in the private sector, the employer determines whether there is an expectation of privacy, says Attorney Jonathan Segal, and unwary employers may create the right to privacy if they are not careful. (Government employees generally have a constitutional right to a higher level of privacy than those in the private sector.)
Employers can destroy the expectation of privacy by having a clear policy that reserves the right to search. On the other hand, employers can create an expectation of privacy by providing affirmative assurances of privacy. For example, Segal says, a statement in your handbook that “We respect our employees’ rights to privacy” may convince a jury that there was an expectation.
What about remaining silent on the subject? That will send the litigation to a jury, Segal says. Segal made his remarks at SHRM’s Annual Conference and Exhibition, held recently in Chicago. He is a partner in the Philadelphia office of law firm Duane Morris LLP.
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Privacy rights—Granted by What?
Employees say, “You can’t do that, I’ve got privacy rights.” Do they?
Segal explains that rights arise from several places in the law. First of all, there’s the federal constitution. It gives public (government) employees substantial privacy rights but does not apply to private employers. “What about my free speech rights?” “You got none,” says Segal.
Then there are the state constitutions. The majority do not give privacy rights to private employers, however, some, such as California, do.
Then, there are statutes, says Segal, including
- Americans with Disabilities Act (ADA)
- Genetic Information Non-Discrimination Act (GINA)
- Federal and state wiretapping and eavesdropping laws
- State privacy laws, such as:
- General off-duty, for example New York
- Smoking, for example, New jersey
- Social media password protections laws, for example, Utah
- Common law, for example
- Intrusion upon seclusion
- Public disclosure of a private fact
Employee Perception
Finally, says Segal, most employers will want to consider employee perception. Perception is reality about half the time, he says. So, first of all, there’s a morale issue. If the employer is seen as being too intrusive, employees won’t like it.
Second, it’s a basis for union organizers to use in their efforts.
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Recommendations for Privacy Policy
Develop and distribute a search policy explicitly reserving the right to search, destroying any reasonable expectations of privacy, says Segal. It is beneficial if the employee acknowledges receipt, but there is a risk of asking for the agreement and then not getting it.
Next, Segal adds, make explicit the policy’s application to physical objects as well as communications, such as:
- Personal belongings (if on premises).
- Work area.
- Desk (even if locked).
- Locker and cabinets (even if locked).
- Motor vehicles (if owned or leased premises).
- Mail (if delivered to employer).
- Telephone systems.
- Fax machines.
- Computer software/applications, hardware, and hardware tools.
- Workstation PCs and laptops.
- Remote access servers and applications.
- Network/file servers.
- E-mail servers and systems.
- Instant messaging networks.
- Voicemail systems.
- Internet servers.
- Portable devices, such as PDAs, pagers, USB drives, memory sticks.
- Flash drives, CDs, DVDs, cell phones, and palm pilots.
- BYOD (Bring Your Own Devices). You do want written agreement on this when company information is stored on personal devices.
In tomorrow’s Advisor, more of Segal’s tips on searches, plus an introduction to Sales Compensation: How to Create, Manage, and Grow a Competitive Strategy That Works webinar.