What Are Your Privacy Rights in the Workplace?
By Jeff Mathias, Attorney
Tropp & Company, Inc.
Employees' privacy rights have become a greater concern in recent years, in large part because of the increasing reliance on e-mail in the office. Many companies now monitor e-mail messages, and employees understandably are crying "foul." What privacy rights do employees have in the workplace?
Courts recognize the tension between two competing interests. One is the right of employers to control their companies without excessive legal burdens. The other is the protection of individual rights. Neither interest takes complete precedence over the other.
Generally, courts assess privacy rights by considering a person's "reasonable expectation of privacy" in a particular situation.1 People have very high expectations of privacy, for example, with respect to their bodies, homes, purses and pockets. Accordingly, the right to privacy is strongest in these areas.
Courts recognize a diminished expectation of privacy with respect to such things as vehicles, which are highly regulated, and whose contents are in plain view. In some situations and places, such as courthouses and airports, there is diminished expectation of privacy even with respect to one's person-the reasonable expectation, on grounds of public safety, is that people in these places may be subject to some sort of search.
When it comes to the workplace, courts normally give some deference to employers. Employers often may monitor e-mail and even telephone calls made to or from the office. There are court rulings to the contrary, but generally, employees are held to have a diminished expectation of privacy with regard to the content of their desks.
Some states regulate drug and polygraph ("lie-detector") testing of employees. Many employers, moreover, have found the incidence of positive test results sufficiently low, and the cost of testing sufficiently high, that there now is little or no testing outside industries that involve public safety, such as transportation. Courts are more inclined to permit employers in those industries to test employees. Laws governing drug and alcohol testing vary considerably from state to state, so members should consult with local attorneys or their state labor departments for more detailed information.
Jeff Mathias (www.mathiaslaw.com), producer of Prairielaw's Employment Law Channel, is a sole practitioner in Iowa who focuses primarily on employment law cases for plaintiffs in state and federal courts. He is also a member of the National Employment Lawyers Association (www.nela.com).
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