Privacy in the Workplace

            “Relying on the government to protect your privacy is like asking a peeping tom to install your window blinds”. – John Perry Barlow


            I never liked working. To me a job is an invasion of privacy.” – Danny McGoorty


            I often encounter people who still believe they have a constitutional right of privacy in this country. Privacy is not addressed in the constitution. And in my opinion, the Patriot Act and the current administration’s domestic wiretapping program has eroded much of whatever small measure of privacy the common law and the courts used to give us.

            Privacy is even scarcer in the American workplace. Private corporations, businesses, stores, sole proprietorships, and other nongovernmental employers can and do invade their employees’ privacy on a daily basis as part of the normal course of business.

            Employers regularly videotape the work of employees interacting with the public in the name of security, check their employees’ internet surfing to prevent sexual harassment, monitor their phone calls to determine productivity and search their desks if violence or theft is suspected. All of this (within reason) is legal and sometimes even necessary for doing business in the electronic age.

            Courts generally will support an employer who can show the company has a legitimate need to monitor its employees’ activities, not only to check their performance but also to protect the company from actions that are illegal or harassing.

            Privacy invasion is not something employers should adopt haphazardly. While the general rules favor the company, the specifics of how you adopt these monitoring laws can make or break you in an employee lawsuit. Therefore, you need to consult a lawyer about written policies and practices tailored to your particular workplace before you start monitoring your employees this way.

            But exactly how much of an employee’s privacy can an employer invade to keep the employee honest, productive and civilized?

            Generally, Texas employers can:

  • Monitor employees’ phone calls on the business phone lines if the employer has the consent of one party (generally the employee through an employee policy). Some states require both parties to the conversation to consent, so if your employees are calling out of Texas, you will need one of those ubiquitous recorded messages, “This call may be monitored or recorded to assure quality customer service”. These recordings provide notice and implied consent if the out-of-state party to the call continues to talk after hearing the recorded notice. If, however, you are monitoring an employee’s calls and it becomes clear that a call is strictly personal, you have to stop monitoring that particular call immediately, because your business reason for listening in has evaporated.
  • Require employees to submit to drug or alcohol testing. Employers who are subject to Department of Transportation regulations because they utilize large commercial trucks are required to perform regular drug and alcohol testing on drivers. The rest of the nongovernmental employers in Texas can choose to perform testing on job applicants, whenever there has been an on-the-job accident, when the employer has a reasonable suspicion that an employees is abusing illegal substances or alcohol, or randomly. Employers can make submitting to testing a condition of the job, so that if an employee refuses, the employer has a good reason to fire the employee.
  • Read an employee’s e-mail if business equipment or e-mail address was used to send or receive it.
  • Double-check the internet sites that an employee is visiting on company time or equipment.
  • Videotape the business in areas that wouldn’t be considered private. This means no video surveillance in the bathrooms or dressing areas. In general, only silent videotaping can be done because recording the sound along with the picture could violate the Electronic Communications Privacy Act.
  • Search lockers and desks on company premises if the employer has notified employees in writing that they should have no expectation of privacy in such areas of the workplace. To emphasize the lack of a reasonable expectation of privacy, the employer should prohibit employees from using their own locks or otherwise allowing the employees to falsely assume that a particular company area is private. Generally the burden is on the employee to show that he reasonably believed his locker, for example, to be private. Well-drafted policies in the employee handbook and notices posted in locker rooms can convince a judge that the employee was mistaken in his belief.

One exceptional area in which the employer does have to protect the employee’s privacy concerns employee health records. HIPPA and the Americans with Disabilities Act require employers to keep medical records, insurance applications, and other health records locked up and private.

Texas businesses actually have some right to privacy from its employees. For example, Texas allows businesses to keep employee personnel files private, meaning the employee can’t see her own file without a subpoena.

Companies can also take steps to protect confidential information and trade secrets from others by requiring employees to keep quiet about these proprietary matters even after the employee has left the company. A written nondisclosure policy or employee agreement is the best way to protect these confidential matters.

In an interesting change in the last 20 years, employees have started audiotaping their own conversations at work (particularly with difficult bosses or coworkers) to try to prove their employee lawsuits for discrimination. Since Texas doesn’t prohibit taping when one party to the conversation is aware of the taping, this isn’t illegal.

But employers who want to prevent this in their workplaces have started writing policies that prohibit the employees from invading the company’s privacy in this way. The courts will support such a policy from an employer if it isn’t enforced discriminatorily.

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