This is the eighth article in a series explaining how Employee Handbooks play a critical role in preventing successful lawsuits. This post focuses on information on employee privacy that should be considered when writing an Employee Handbook.

Employee Privacy

Public versus private sector A fundamental distinction exists in the area of “employee privacy” between public sector and private sector employees.. Public sector workers, because they are employed by a governmental agency, are entitled to some “right of privacy” under the Fourth and Fourteenth Amendments to the Constitution; i.e, their employer, the governmental agency, is limited in what it can do to them by these constitutional limitations “state action.”

In all but a few states (California, Illinois, South Carolina), private sector employees have no such government conferred constitutional “right to ” In most states an employee’s right to privacy is not conferred unless their employer creates one by promising privacy explicitly or implication. When it is claimed that such a promise of privacy has been made, employees often seek redress under several theories, including the following:

• Defamation – including the release of false or inaccurate information by the employer that results in damage to the reputation of the employee.
• Infliction of emotional distress, including subjecting the employee to outrageous conduct that causes severe and debilitating injuries.
• Negligence.
• Invasion of privacy, including unwarranted publicizing of a company’s private affairs and intrusion into the employee’s private affairs.

The key to diminishing the possibility of such problems is to adopt a policy and/or handbook provision which makes clear that employees have no right to the expectation of privacy in anything involving their job or the workplace. Such policies should contain the following:

• While the Company allows employees to use its property, this does not make the use of that property in any way “private” or secret from the employer.
• Employees have no expectation of privacy anywhere on or in Company property, including none in any Company desk, locker, or computer or other electronic equipment.
• The Company also reserves the right from time to time to search the Company premises and property (including all company equipment) as well as personal items and vehicles brought by employees onto Company property.
• Refusals to comply with search requests will subject employees to discipline up to and including discharge.
• Special provisions may be required where an employer wishes to monitor employee telephone calls and e-mail. Title VII of the Omnibus Crime Control and Safe Streets Act of 1968 and the Electronics Communications Privacy Act of 1986, 18  S.C. § 2510 et seq., prohibits invasions of privacy through interception of oral, wire and electronics communications unless the employer is a party to the conversation and/or there has been consent to the interception.   Some states require consent of all parties to the phone conversation.
• A further federal exception exists where the employer monitors employee phone calls if the interception of the communication is “in the ordinary course of ” If this is the practice it should be stated in the handbook provision.  Some states require the consent of all parties to the phone conversation.