Privacy Rights in the Workplace
As the line between our personal lives and work lives becomes more blurred, it is that much more important for private sector employers to understand what privacy rights their employees maintain in the workplace. Private sector employers are not subject to the Fourth Amendment of the United States Constitution which gives public sector employees broader legal protections with respect to privacy. However, federal and state statutes as well as common law provides private sector employees with privacy protections. A summary of some of the privacy issues common in today’s workplace are discussed below.
Notably, data privacy has made a number of headlines over the last few years. It is not uncommon for employees to receive email requests for the personal data of fellow employees that appear to be sent by a superior but turn out to be a phishing attempt from a third party. In fact, the problem became so common that the IRS issued a warning in 2016 to employers and made recommendations to minimize ongoing data breaches from such schemes.
Email monitoring and surveillance has likewise become more commonplace with employers using new technologies to track employees’ personal email usage, such as keylogger or screenshot software. The fact that an employee’s personal email account is on their work computer does not give the employer free reign to access that account. Employees have certain expectations of privacy. If there is no advance notice that the employer is monitoring email, using surveillance software, or accessing a password-protected personal account, employees’ privacy interests may be violated.
The same general concepts mentioned above apply to video surveillance in the workplace. Video surveillance has become commonplace for employers looking to deter theft and maintain security, review employee productivity, impose discipline, or enforce company policies. This type of surveillance is allowable so long as it is not being done in areas where employees have an “expectation of privacy”, such as bathrooms. Again, employers should put employees on advance notice of such surveillance through signage and, at a minimum, in their written policies and procedures. One word of caution: Any audio recordings, either through the video surveillance process or otherwise, will be subject to federal and state wiretap laws. Pennsylvania is a two-party consent state and, subject to a few exceptions, unauthorized audio recordings could subject the party doing the recording to a wiretap violation which is a third-degree felony in Pennsylvania.
In addition to privacy rights inside the workplace, employees need to understand how their off-duty conduct can impact their privacy rights in the workplace. Social media is at the forefront of this discussion. Some courts have found that social media posts of employees which are accessible to coworkers, either due to lack of privacy settings or because access has been granted to such coworkers, are not considered private. The conduct of an employee on social media, especially when targeted against a co-worker or the employer, can result in the violation of employment policies and could trigger the need for investigation or disciplinary action. Due to the prevalence of social media, it is important for employers to include a social media policy as part of their policies and procedures so that all employees understand the employer’s expectations, as well as their own privacy rights, when using social media.
Whether it is through social media or in general conversations, policies addressing political speech in the workplace are also being seen more often. While Pennsylvania does not have a specific statute relating to political speech in the workplace; the Pennsylvania Constitution prohibits supervisors and managers from discussing politics in the office in a manner that could be interpreted as a threat of harm or loss intended to induce an employee to vote in a particular way, or not vote at all. Outside this limitation, private sector employees have little protection in the workplace with regard to political conduct, whether it be in the form of peaceful protests or otherwise.
Background Checks and Drug Testing
Background checks and drug testing likewise are the subject of certain restrictions and requirements; however, employers are generally able to obtain detailed personal information about a potential hire or employee for employment purposes. That said, legislation as to when an employer can request information about criminal records is being passed in more cities and states in the form of “Ban the Box” laws. Also, state laws relating to marijuana use have impacted how employers regulate their drug-free workplace. In contrast, more employers are conducting ongoing background checks in order to monitor and detect behaviors that could lead to violence in the workplace.
Through policies and procedures, employers must try to balance their employees’ expectations of privacy with their interest in providing a safe and productive workplace. It is imperative that policies are up-to-date and reviewed regularly regarding privacy rights. It is even more important that an employer’s internal practices are consistent with those policies and that they are implemented and enforced in a non-discriminatory manner.
Attorney Loren Speziale is an experienced employment attorney working with employers across the region. She regularly assists employers with drafting handbooks as well as providing guidance on implementing appropriate employment policies in the workplace.