Chapter 14
The Employee’s Right
to Privacy and
Management of
Personal Information
McGraw-Hill/Irwin
Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved.
Learning Objectives
 Describe the nature of privacy as a fundamental
right
 Explain the three general ways in which privacy
is legally protected in the United States
 Define the legal concept of a “reasonable
expectation of privacy” and its application to the
workplace
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Learning Objectives
 Identify and apply the standard for unreasonable
searches and seizures under the Fourth
Amendment
 Explain the distinctions between the protections
for public- and private sector privacy protections
 Describe the legal framework that applies to
private-sector privacy cases
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Learning Objectives
 Identify and differentiate the prima facie cases
for common-law claims of privacy invasions
(intrusion into seclusion, public disclosure of
private facts, publication in a false light, and
breach of contract/defamation)
 Explain the extent to which an employer can
legally dictate the off-work acts of its employees
 Discuss how advances in technology have
impacted employee privacy
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Learning Objectives
 State the key business justifications for
employee monitoring
 Explain the most effective means by which to
design and to implement a technology use policy
 Describe the legal environment that surrounds
employee use of social media technologies
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Are There Guarantees in Life?
 The right “to be let alone”
 Privacy as a fundamental right
 Employer’s need for private information
 Global marketplace
 Protecting employees’ personal information
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Realities about Employee Privacy
Rights
 Employees do not have an absolute right to
privacy in their workplace
 It is not a breach of an employee’s right to
privacy for an employer to ask with whom the
employee lives
 In the private sector, the Constitution does not
protect employees’ right to be free from
unreasonable searches and seizures
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Realities about Employee Privacy
Rights
 Without constitutional protection, employees are
safe guarded to some extent by common law
protections against invasions of privacy
 Though an employee may give information to an
employer, the employer is still bound to use that
information only for the purpose for which it was
collected
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Background
 Privacy may be protected by
 Constitution (federal or state)
 federal and/or state statutes
 common law
 Fundamental rights: A right that is guaranteed
by the Constitution whether stated or not
 Required disclosure of certain types of personal
information should be considered an unreasonable
search
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Workplace Privacy, Generally
“Reasonable” Areas in Which to
Expect Privacy in the Workplace
• One’s body and physical space; one has a reasonable expectation
to be free from a pat-down or body search
• Normally private locations, such as a purse or briefcase
• Personal information, accessed without permission
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Workplace Privacy, Generally
 No broad rights to privacy
 No comprehensive federal workplace privacy
legislation exists
 Employees may be fired at will (provided it is not
for illegal reasons)
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Public Sector Employee Privacy
 Public sector: That segment of the workforce
represented by governmental employers and
governmental agency employers
 The Fourth Amendment
 Protection against unreasonable search and seizure
 Violation if the search is
 Unreasonable
 Unjustified at its inception
 Impermissible in scope
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Public Sector Employee Privacy
 Search warrant
 Drug testing
 Search of employer-owned property
 False imprisonment
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Public Sector Employee Privacy
 The 5th and 14th amendments
 Strict scrutiny
 Compelling state interest
 Rationally related to a valid state interest
 Is the right fundamental?
 Implicit in the concept of ordered liberty
 Deeply rooted in this Nation’s history and tradition
 No general right of the individual to be left alone
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The Privacy Act of 1974
 Regulates the release of personal information
about federal employees by federal agencies
 Basic principles
 Employee access to their files
 Mechanism to correct or amend information
 Prevention of inappropriate revelation of information
 Maintenance of information
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The Privacy Act of 1974
 The right to privacy is not absolute
 Eleven exceptions to the act
 Guiding factors
 Employee relief
 Criminal penalties
 Civil remedies
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Privacy Protection Study Commission
 Privacy Act not extended to private sector
 Commission recommendations
 Not yet implemented by Congress – vocal rejection
from private employers
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Federal Wiretapping―Title III
 Federal Wiretapping – Title III
 Governs the interception of oral, wire, and electronic
communications
 Interception by state and local law enforcement
 ECPA
 Covers all forms of digital communication
 Prohibits unauthorized eavesdropping
 Prohibits unauthorized access to messages
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Private Sector Employee Privacy
 State action – actions by state or federal
government
 Private action – action by private employer
 No constitutional protection triggered
 Compliance-related costs for private employers
 Private-sector employers do not carry out
invasive activities
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Legal Framework for Employee Rights
in the Private Sector
 At-will employment doctrine: Employers are
free to fire an employee—and employees are
free to leave the position—at any time and for
any reason
 Protection for private-sector employees
 State and federal laws prohibiting adverse
employment action for discriminatory reasons
 Employment at will limited by certain statute or case
law
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Bases for Right to Privacy in the
Private Sector
 Statutory Claims – inadequate protection for
private employees
 Tort: A tort is a private wrong in which one
person causes injury to another person
 Allows the injured person to sue the wrongdoer and to
collect damages
 The injury can be physical, mental, or financial
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Bases for Right to Privacy in the
Private Sector
 Tort Law Protections/Common Law
 Intrusion into Seclusion
 Wrongful invasion – objectionable to a reasonable person
 Public disclosure of private facts
 Intentional or negligent public disclosure of private matters
 Such disclosure would be objectionable to a reasonable
person of ordinary sensitivities
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Bases for Right to Privacy in the
Private Sector
 Other tort law protections
 Publication in a false light
 Public disclosure of facts that place the employee in a false
light
 Breach of contract
 Defamation
 Libel vs. slander
 Compelled self-disclosure
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Regulation of Employee’s Off-Work
Activities
 Private activities may be regulated if the off-work
conduct affects the employee’s performance at
the workplace
 Smoking, weight, marital status, romantic
involvement, political status, and lifestyle
discrimination
 Enforcement
 U.S. companies with operations in Europe must
comply with data protection laws
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Employer’s Information-Gathering
Process/Justified Use/Disclosure of Information
 Process of information gathering
 Harassment
 Improper filing
 Dissemination of the information
 Function creep
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Employer’s Information-Gathering
Process/Justified Use/Disclosure of Information
 Collection and retrieval of information
 Limitation of questions to potential employee
 Proper storage of information
 References
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Electronic Monitoring or Surveillance of
Employee Activities
 Written policies concerning e-mail and Internet
use
 Bloggers beware
 New technologies
 Global positioning systems (GPS)
 Radio frequency identification devices (RFID)
 Biometrics
 Informal intrusions
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Forms of Monitoring
 Surveillance by glitch
 Information uncovered by mistake
 Surveillance by default
 All information sent through a system is caught and
cataloged
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Forms of Monitoring
 Surveillance by design
 Entire purpose is to collect information and the user is
aware of this purpose
 Surveillance by possession
 Employee information contained in a database or
some other list
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How Does Monitoring Work?
 Silentrunner
 Global positioning
 Websense/Websense reporter
 MIMEsweeper
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How Does Monitoring Work?
 Reasons to monitor
 Avoid legal liability
 Prevent employee theft
 Protection from overt intrusions
 Prior consent
 Business extension
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Percentage of Large U.S. Companies
That Monitor Employee E-mail
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Business Justifications for Monitoring
Employees’ Technology Use
 Reasons to limit workplace Internet use
 Wasted time
 Overclogged networks
 Inappropriate material seepage into the workplace
 Concern about impression
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Business Justifications for Monitoring
Employees’ Technology Use
 Areas of employer potential liability
 Defamation
 Copyright infringement
 Sexual harassment
 Discrimination
 Obscenity
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The Case of Employee E-mail
 Employers’ needs vs. employees’ right to privacy
 The employer’s interception must not exceed the
scope of the employee’s consent
 Employee must be informed
 State imposed notice requirements
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Developing Computer Use Policies
 Policies – written, communicated to employees,
and adhered to
 Suggested guidelines
 Appropriate areas
 Employee access to information gathered
 Ban on continuous monitoring and secret monitoring
 Only job relevant information collected
 Only for business interest
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Blogging and Other Social Media (“Web
2.0”)
 Social media: User-created content, including
text, video, audio, and other multimedia
 Published in a shared environment, such as a blog,
wiki, or other similar site created to enable such
sharing
 Employers have wide latitude in off-duty
blogging
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Blogging and Other Social Media (“Web
2.0”)
 Company’s social media policy
 Defined objectives that do not overreach
 A reminder that company policies apply
 Personal comment rules
 Disclosure, monitoring, and copyright reminders
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Waivers of Privacy Rights
 Waiver: The intentional relinquishment of a
known right
 Waiver of privacy rights as a condition of
employment
 Requiring a waiver is a questionable approach
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Waivers of Privacy Rights
 Requirements of a waiver
 Should be accompanied by an offer of employment
 Must be knowingly and intelligently given
 Must be clear and unmistakable, given in writing, and
voluntary
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Privacy Rights Since September 11,
2001
 USA PATRIOT Act
 Allows government to monitor anyone on the Internet
simply by contending that the information is “relevant”
to an ongoing criminal investigation
 Employer response to governmental request for
information
 Anti–USA PATRIOT Act resolutions
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