Employee Privacy Laws in the United States

There is no single comprehensive law in the U.S. Regulating workplace privacy rights. Typically, workplace privacy disputes are resolved using some combination of federal, state and common law (also known as "case law"). Facts on File News Services (2008). The constitution itself does offer some assurance of privacy to employees. The Fourth Amendment affirms "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Employees sometimes argue that this should protect them from having their workplace computers searched by employers. However, U.S. Courts have rules in several cases that employers do, in some instances, have a right to search employee's computers, such as in the case of suspected criminal behavior. The Fourth Amendment protections usually do not apply to workplaces in the private sector.

In 1986, The Electronic Communication Privacy Act (ECPA) was enacted. It would appear at first glance that this law prohibited employers from intercepting and reading employee's emails. However, the law includes several "exceptions" and employers are allowed to monitor employee's emails if they are notified in advance. This is why many employees must sign a waiver that they allow the company to monitor internet and email usage.

In 1968, the Omnibus Crime Control and Safe Street Act has been interpreted as restricting the ability of employers to "listen in" on their worker's telephone calls. Facts on File News Services (2008). Employers do have the right to monitor phone calls if the employee is notified in advance. However, the monitoring must cease if the phone calls are evidence to be personal and not "business related."

Email has become a preferred means of communication to fellow workers and clients. The use of the internet in searching for information is a common practice. However, the abuse of email can happen when employees use email to send private messages. Internet abuse can occur when employees use company time for personal internet use, such as surfing the net or shopping online. Therefore, many employers find it necessary to implement policies to restrict email and internet use to work related activities only. Employers find it necessary to implement e-mail and internet use "because it can minimize potentially serious problems such as sexual harassment and the leaking of sensitive corporate data via telephones and the internet." Facts on File News Services (2008).

Employers have to have policies in place to regulate email and internet usage by employees. A new Jersey state appellate court's 2005 ruling in Doe vs. XYZ Corp. held an employer liable for failing to catch an employee who used company equipment to download child pornography on the internet. Lenckus, Dave. (2007). With this ruling, it was clear that employers must track employee's internet use.

What employees must assume is that if they sign a waiver of a written work policy giving the employer the right to monitor their work area, telephone, and computer; their activities can and will be monitored. Employees must then restrict their email and internet usage to company business only, leaving personal internet and email activities for home use only.

Employees still do have some privacy rights that are being upheld in court. In Quon v. Arch Wireless Operating Co., et al., the federal Court of Appeals for the Ninth Circuit recently considered the nature and scope of an employee's expectation of privacy in workplace text and email messages. Orange County Business Journal (2009). Several police officers exceeded their monthly allotment of tex characters on the department issued two-way pagers. The Lieutenant in charge told them that if they paid the overage payments, they would not face an audit determining whether or not the overages were for business or personal reasons. The employees in question did pay the overage charges. However, even after this payment, the Department still requested transcripts of the text messages from the service provider. One officer sued the department for invasion of privacy. The court ruled that the officer had a "reasonable expectation of privacy" in his text messages. The court further ruled that the Department's audit was unreasonable in that there was a less intrusive means of achieving their goal of reducing the use of two-way pagers for personal text messaging.

This also leads to the court's consideration of interplay between such electronic forums as MySpace. In Pietrylo v. Hillstone Restaurant Group, an employee created a "private," invitation-only discussion group about his workplace. Orange Country Business Journal (2009). The manager became aware of the group and asked the employee for the password to access the cite. The employee gave his manager the password. The manager found sexual comments about employees and customers. The employee was terminated. The jury returned a verdict against Houston's. They found that the manager knowingly accessed the private group without authorization and that the employee had been coerced into providing the password. The damage award was small, $3,500. This case shows the importance of employers avoiding restricted social media sites.

References:

MEGAN MARTIN. (2009, October 13). The evolution of e-privacy; Mobile muddle; Courts are becoming more sympathetic to employee expectations. The Gazette,B.1. Retrieved October 19, 2009, from Canadian Newsstand Core. (Document ID: 1880439611).

Anonymous, . Employee Privacy in the Workplace - E-mails, Video and MySpace. (2009, September). Orange County Business Journal, 32(37), A16,A19. Retrieved October 19, 2009, from Business Dateline. (Document ID: 1879716201).

Lenckus, Dave. "Be clear and document employee privacy restrictions; How to avoid pitfalls but build protections.(Spotlight: RIMS 2007 Trends & Developments)." Business Insurance 41 (May 14, 2007): 29. General OneFile. Gale. Apollo Library-Univ of Phoenix. 19 Oct. 2009
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Hippie, S., & Kosanovich, K. (2003). Computer and Internet use at work in 2001. Monthly Labor Review, 126(2), 26. http://search.ebscohost.com

"Workplace Privacy." Issues & Controversies On File: n. pag. Issues & Controversies. Facts On File News Services, 21 Mar. 2008. Web. 19 Oct. 2009. .