Avoid Charges of Illegal Snooping

Q. One of my employees is upset because I looked in his desk drawer. He’s claiming I invaded his privacy. What exactly does this mean? What do I need to know about the privacy rights of my employees?

A. Employees have the right to be protected from unreasonable intrusions into their private affairs.

The questions here are, what is unreasonable and what is private? The meaning of “unreasonable” is up for grabs because it often means whatever a court says it means. And what is “private,” at least in some instances, amounts to what ever the employee’s expectation of privacy is. And, answering the questions of what is unreasonable and what is private is further complicated by specific provisions of some federal laws, by some state constitutional provisions and by some state laws.

Here are some examples of specific employee privacy issues.

Applicant Interviews. Applicants have a right not to answer questions about and reveal personal information about topics which could lead to an employer illegally discriminating in hiring. Therefore, in the interviewing and hiring process, the employer must avoid topics (such as the applicant’s marital and family status or the applicant’s nationality) which might result in a discriminatory hiring decision.

Applicant Testing. Under the Americans with Disabilities ACT and similar state laws, applicants have a right not to be required to undergo any testing or examinations that might reveal physical or mental conditions that could result in an employer illegally discriminating on the basis of a real or perceived disability.

Video Surveillance. Videotaping in work areas and public areas is permissible when the employer has a business purpose for the surveillance. (Never videotape in private areas, such as restrooms and showers.) Federal law prohibits producing videotapes that include an audio component. Before videotaping employees, give them notice they are being videotaped and have no expectation of privacy.

Telephone and Voice-mail Surveillance. The federal Electronic Communications Privacy Act (ECPA) protects employees from having their telephone and voice-mail communications intercepted and recorded, with some exceptions. State laws also regulate the monitoring and recording of electronic voice communications. In general employers have a right to monitor employees’ business-related communications. But before deciding to do such surveillance, the employer should consult with an attorney regarding specific applications of federal and state laws.

Internet and E-mail. The ECPA prohibits interception of any wire, oral or electronic communication. However, when the employer is providing the communication service (such as e-mail and Internet access) the employer has the right to monitor the use of the service to assure it is being used for legitimate business purposes.

Before monitoring employees’ use of the e-mail and Internet service, the employer should give employees notice that they have no expectation of privacy and the employer monitors their e-mail and Internet use.

So in the hiring process alone, privacy — even for the potential employee — is crucial. You don’t ask, “Are you married? Do you have a family? Are you pregnant?”

If you do testing you’re required to protect an employee’s privacy by guarding test results from people who don’t have a work-related need to know. This includes such things as physical exams, personality tests, honesty tests and certainly any results from drug and alcohol screening.

Now, about workplace searches. The word “search” isn’t necessarily limited to a formal practice of physical searches. Your limitations most likely encompass employer snooping. Do you snoop? Do any of your managers or supervisors snoop, or do you know if your management people ever snoop? Snooping is an ugly word. But surely a little peek into an employee’s desk or coat pocket is justifiable if you have probable cause. Or is it? The answer is probably NO. Unless… employees are alerted, for example, to occasional monitoring of telephone conversations, listening to voice mail messages, viewing electronic messages on their computers, searches of lockers, briefcases and files. These kinds of actions may be considered by your employees to be an invasion of their privacy. Unless alerted in advance, employees have no reason not to assume privacy.

So if you plan to do monitoring, surveillance and searching of employees, take these four steps:

1. Consult with an attorney for guidance on how to do so legally.

2. Adopt a written policy informing employees of the practice.

3. State in the policy the situations in which employees have no expectation of privacy.

4. Have employees sign a statement that they have received, read, understand and accept the policy.

[NOTE: Information and guidance in this story is intended to provide accurate and helpful information on the subjects covered. It is not intended to provide a legal service for readers’ individual needs. For legal guidance in your specific situations, always consult with an attorney who is familiar with employment law and labor issues.]